1995 Congressional Hearings
Intelligence and Security



                          STATEMENT



                             OF



                      GREGORY T. NOJEIM

                     LEGISLATIVE COUNSEL

               AMERICAN CIVIL LIBERTIES UNION

                 WASHINGTON NATIONAL OFFICE



                             ON



         CIVIL LIBERTIES IMPLICATIONS OF H.R. 1710,

         THE COMPREHENSIVE ANTITERRORISM ACT OF 1995

       AND RELATED LEGISLATIVE RESPONSES TO TERRORISM



                           BEFORE



           UNITED STATES HOUSE OF REPRESENTATIVES



                 COMMITTEE ON THE JUDICIARY



                        JUNE 12, 1995



Mr. Chairman and Members of the Committee:



     I appreciate the opportunity to testify before you

today on behalf of the American Civil Liberties Union

(ACLU). The ACLU is a nation-wide, non-partisan organization

of more than 275,000 members devoted to protecting the

principles of freedom set forth in the Bill of Rights. I

will focus my remarks on the civil liberties implications of

H.R. 1710, the "Comprehensive Anti terrorism Act of 1995"

introduced by Mr. Hyde to cover both domestic and

international terrorism. Where appropriate, I will compare

that legislation to H.R. 896, the "Omnibus Counter terrorism

Act of 1995," introduced at the request of the

Administration in February 1995 to combat international

terrorism, and H.R. 1635, the "Anti terrorism Amendments Act

of 1995," introduced after the April 19 bombing in Oklahoma

City at the request of the Administration ostensibly to

combat domestic terrorism.



     While each of these bills was introduced to combat

terrorism, in the view of the ACLU, the legislation would do

substantial damage to civil liberties in the United States.

Instead of being tools to prevent "another Oklahoma City"

the portions of the legislation that violate civil liberties

have little to do with preventing such a bombing attack in

the future. They are instead a collection of measures--many

of which have been offered before-attached to legislation

promulgated as terrorism legislation.



     From a civil liberties perspective, some provisions of

H.R. 1710 are an improvement over the Administration's

bills, but other provisions are a step backward, and raise

even more civil liberties problems than they solve. Enacting

H.R. 1710 in its current form, or amending it into a bill

that would further erode civil liberties, would be like

adding kerosene to the fire of distrust of the government

that has been espoused by some following the tragedy in

Oklahoma City. Amendments to the bill could mitigate the

constitutional problems raised by the legislation.



     The ACLU recognizes that the bombing in Oklahoma City

should prompt us to re-examine the ability of law

enforcement to protect us against violent activity. This

re-examination 'should be conducted carefully, and any new

proposals should be narrowly focussed on the problem they

would address, and be consistent with the Constitution.

Terrorism legislation to deal with criminal activity can be

enacted without adding the Bill of Rights to the list of

casualties in Oklahoma City.



Our concerns about the pending legislation are discussed 

below.



                                   1



NEW, BROAD DEFINITION OF DOMESTIC TERRORISM



A. Background



     Section 315 of H.R. 1710 would substantially broaden

the definition of "terrorism" in current law to cover

domestic (as opposed to international) activity, including

violence at abortion clinics. The activity that would become

"terrorism" includes so much activity that the section

cannot help but be enforced selectively, according to the

politics of the day.



B. Discussion



     Section 315 of H.R. 1710 would re-write a section of

U.S. law' defining "international terrorism." It would label

as "terrorism" certain activity which occurs wholly within

the United States. Under Section 315, "terrorism" would be

defined as the use of force within the U.S. in violation of

the criminal laws of the United States or of any state, that

appears to be intended to achieve political or social ends

by intimidating or coercing a segment of the population or

influencing a government or government official.

"International terrorism" would be terrorism that occurs

primarily outside of the United States or transcends

national boundaries.



     The sweep of this section is breathtaking. It would

turn into "terrorism" any forcible blocking of an abortion

clinic if that use of force violated any criminal law, such

as the FACE law. It would turn into "terrorism" any forceful

act of civil disobedience that violates a criminal law,

engaged in by any civil rights activist. It would turn into

"terrorism" the forcible entry by an animal rights group

into a building at night for the purpose of hanging a banner

from the window to expose the torture of animals. It would

turn into "terrorism" the forceful disruption of an

anti-Semitic speech by a member of the Ku Klux Klan, if such

activity was "intimidating" to the Klan and violated a state

criminal law against disruptive behavior. It is clear that

this definition would sweep in an extraordinarily wide range

of activity.



     Then the dominoes would fall. Under 18 U.S.C. Section

2339A, it would be a crime punishable by a substantial fine

and up to ten years in prison to provide material support or

resources, including cash, meeting facilities,

transportation, or goods for the conduct of such

"terrorism." In other words, if the anti-abortion group used

church busses to get to the clinic, or met in the church

basement to plan the protest, the church would be providing

material support for terrorism. Under Section 2339A as it

would be amended by Section 103 of H.R. 1710, the statutory

protection against investigating First Amendment activity at

the church would be abolished, leaving only the Attorney

General Guidelines as a

--------------------

1 8 U.S.C. Section 2331.



2

protection (see discussion below). Under Section 308 of H.R.

1710, the FBI would be empowered to obtain, without a court

order, an "emergency wiretap" of the meeting in the church

basement at which the protest was planned (see discussion

below).



     Congress has hesitated to adopt a statute defining

"terrorism" in the United States because any such definition

threatens to sweep in a broad range of conduct and raises

the prospect that the statute would be enforced selectively.

Former President George Bush once said, "One man's terrorist

is another man's freedom fighter." This proposed section of

law underlines President Bush's observation, and illustrates

why legislating in this area is so difficult.



C. Recommendation



     Section 315 should be deleted.



FIRST AMENDMENT SUPPORT FOR LEGAL ACTIVITIES



A. Backqround



     The First Amendment to the Constitution guarantees to

people in the United States the right to freely associate.

This right extends both to citizens and to non-citizens.

Courts have interpreted the First Amendment to mean that

people are to be held accountable for their own actions, not

for the actions of others. The courts have consistently held

that raising and contributing money, and recruiting members,

are activities protected by the First Amendment. Only

support intended to further the unlawful activities of a

group can be prohibited.



     To be consistent with the Constitution, effective

terrorism legislation must prohibit unlawful activity, not

merely associations, because to do otherwise would be to

operate on nothing less than guilt by association. Like

Section 301 of H.R. 896, Section 102 of H.R. 1710 would do

violence to this principle. The legislation would turn into

a criminal act the giving of a pencil to a school operated

by a group designated a terrorist organization by the

President.



B. Discussion



     Section 611 of H.R. 1710 would give the President

unprecedented power to designate any foreign group a

"terrorist" organization. Once so designated, its members

would be barred from



                              3

entering the United States2 and Section 102 of H.R. 1710

would make it a criminal act to provide support for

non-violent, charitable activities of such organizations. A

similar provision barring support for legal activities

appears in Section 301 of H.R. 896.



     The proposed legislation would attack citizens who

support the non-violent, legal activity of unpopular groups

label led as "terrorist organizations."   Section 611 of

H.R. 1710 would give the President unprecedented authority

to designate any foreign organization found by the President

to have ever engaged in "terrorist activity" that threatens

the national security of the United States. "Terrorist

activity" is broadly defined under current law to include

unlawful use of any explosive or firearm (other than for

mere personal gain -- such as a robbery) with intent to

cause substantial damage to property. 3 Once so label led,

anybody in the U.S. who sent money to the organization, even

to support non-violent, charitable activity of the

organization, would be subject to a substantial fine and up

to ten years in prison.4



     Current law already criminalizes the provision of

material support for certain criminal "terrorist"

activities.5 The legislation therefore is calculated to

outlaw support for what is left: lawful activities of

designated organizations -- a fundamentally flawed approach.



     H.R. 1710 contains no provision for judicial review of

the President's designation of a "terrorist organization."

Moreover, few, if any, courts would second-guess the

President when the criteria for the designation is the

national security of the United States. Courts simply have

no way to measure whether the group's activities threaten

"national security." Under Section 611(a)(2), Congress,

however, could pass a law reversing the Presidential

designation, and would be advised of the impending

designation at least three days prior to publication in the

Federal Reqister. Congressional review opens up more

problems than it solves: lobbyists from various groups would

descend on Congress armed with



--------------------

2 The immigration implications of this new power to

designate groups are discussed below under "Resurrection of

McCarran-Walter Act."



3 Under H.R. 896, terrorist activity would be even more

broadly defined to include fund raising for the legal, non-

violent, even charitable activities of organizations

designated as terrorist organizations.



4 Section 301 of H.R. 896 also provides for the freezing of

the assets of any designated organization, without any due

process.



5 18 U.S.C. Section 2339A.



                                   4

reports, charts, legal briefs and arguments about why other

groups who disagree with them should be designated as

terrorists, or why they should not be designated.



     In addition, because the bill allows for designation of

any group that "engages in or has engaged in" terrorist

activity, the President would be empowered to designate any

group that has abandoned terrorist activity. Such groups

would include the African National Congress, which the

United States government once considered a terrorist

organization. Finally, unlike H.R. 896, under H.R. 1710,

there would be no opportunity for an individual to obtain a

license to furnish support for the legal, non-violent

charitable activities of a designated organization. 6



     H.R. 896 contains a similar provision at section 301,

and it differs in a number of ways from H.R. 1710.

Presidential designations of a terrorist group are

effectively unreviewable by a court because designation is

conclusive7 and based on foreign policy and national

security grounds. This provision in H.R. 896 differs in that

the presidential designation is permanent unless reversed by

the President, cannot be reviewed by Congress, can cover

domestic groups who raise funds for or "act on behalf of"

any foreign designated group, and a person could in theory

obtain a license to contribute to the non-violent,

charitable activities of the designated organization. 8



--------------------

6  Section 611 of H.R. 1710 also provides that the

presidential designation will lapse if not renewed every two

years.



7 The Administration has expressed a willingness to remove

from its bill the language indicating that the designation

would be conclusive.



8 The licensing provision in the Administration bill would

in theory allow a donor to secure a license to support the

charitable, religious, literary, or educational purposes of the

designated organization. However, the licensing provision is

wholly illusory because: (i) it would require a foreign

organization, declared a "terrorist" organization by the

President, to open its books to the Treasury Department as a

condition of granting the license; and (ii) it would require

a donor who would transfer money to such foreign

organization to likewise open its books to the Treasury

Department and be able to show "the source of all funds it  

receives, expenses it incurs, and disbursements it makes"

regardless of whether the expenses, disbursements, and

income relate to the charitable activity it

would like to support -- a virtually impossibility for

individual donors. No exception was made for religious

institutions, which likewise would be required to open their

books to the government in order to make a donation. This

would risk impermissible



                              5

     The fund raising provisions of each piece of proposed

legislation take a fundamentally flawed and unconstitutional

approach. Criminalizing support for such legal activities is

not the way to deal with terrorism. These sections of the

bill smack of McCarthyism at its worst. Instead of outlawing

support for legal, non-violent activities of designated

organizations, the ACLU suggests Congress focus on outlawing

support for illegal activities of any individual or

organization.



     The Supreme Court has repeatedly held that contributing

money to political groups is protected by the First

Amendment. 9 It has also repeatedly held that the First

Amendment bars the government from prohibiting support for

an organization unless the government proves that the person

furnishing the support intended to further the unlawful

activities of the organization. It developed this principle

in a series of cases involving the Communist Party, despite

the government's contention that the Communist Party posed a

threat to national security and sought to overthrow the U.S.

government by force.lÝ In Healy v. James, 408 U.S. 169, the

Court held:



'guilt by association alone, without [a showing] that

an individual's association poses the threat feared by

the Government,' is an impermissible basis upon which

to deny First Amendment rights. The government has the

burden of establishing a knowing affiliation with an

organization pursuing unlawful aims and goals, and a

specific intent to further those illegal aims.



     The implications of logic supporting this provision in

H.R. 1710 are profound. The logic suggests that the

government could, without violating the Constitution, punish

any support for any group that plans to engage in unlawful

activity. Taken to i

ts

--------------------

entanglement between church and state.



9 See Citizens Aqainst Rent Control v. Berkeley, 454 U.S.

290, 295-296 (1981); Federal Election Commission v. National

Conservative Political Action Committee, 470 U.S. 480,

493-495 (1985); and Roberts v. United States Jaycees, 468

U.S. 609, 62627 (1984).



10 See Keyishian v. Board of Regents, 385 U.S. 589, 606-07

(1967) (striking down a statute barring members of the

Communist Party from employment); Elfbrandt v. Russell, 384

U.S. 11 (1966) (same); United States v. Robel, 389 U.S. 258

(1967) (same); Communist Party of Indiana v. Whit comb, 414 

U.S. 441, 448-49 (1974) (regarding ballot access); APtheker v.

Secretary of State, 378 U.S. 500 (1964) (freedom to travel abroad);

Baird v. State Bar of Arizona, 401 U.S. 1 (1971) (right to practice

law); and Schware v. Board of Bar Examiners, 353 U.S. 232 (1957)

(same).



                                   6

logical end, this means that the government could punish a

person for paying membership dues to the National

Association for the Advancement of Colored People (NAACP) if

the member knew that the organization planned an act of

civil disobedience. This logic suggests likewise that it

would be permissible under the Constitution to punish a

person who paid membership dues to an anti-abortion group,

if the person paying the dues knew the group planned to

trespass on the premises of an abortion clinic.



     Even as written, the legislation could have a dramatic,

negative effect on organizations that would conduct relief

activities in many troubled parts of the world.ll By barring

individuals and organizations from providing even in-kind

support to organizations the President has designated as

"terrorist" organizations, the legislation could disrupt

relief efforts encouraged by the U.S. government.



     In some troubled parts of the world, relief

organizations have no choice but to work through

organizations likely to be designated as "terrorist"

organizations by the President. Relief organizations must

often pay small fees or bribes to groups that conduct some

objectionable activity. Afghanistan is a prime illustration.

To furnish any funds, goods, or services to such a group,

even if done to advance a humanitarian endeavor, would

become a crime.



     The faction in Somalia headed by Mohammed Far ah Aide

Ed ("Aide Ed faction") would likely have been designated a

"terrorist" group, had legislation such as that now proposed

been pending when the United States was leading relief

efforts in Somalia. To conduct relief work in Somalia, many

non-governmental organizations were required, as a condition

of getting a truck full of supplies such as grain or

medicine through an area controlled by the Aide Ed faction,

to hire "guards" furnished by this faction, and give a

portion of the supplies to this faction. NGO's did not like

to do this, but they did it to save lives. Under the pending

legislation, paying those "guards" or furnishing that bag of

grain as a "toll" so a truck filled with grain could get

thro,ugh, would become a criminal act. 12 This would be the

case even if the giver



--------------------

11 The following section assumes that the phrase "within the

United States" is not intended to prohibit prosecution of an

individual or organization raising funds here, but providing

material support to a "terrorist" organization abroad.

Section 301 of H.R. 896 clearly contemplates such

prosecution.



12 In fact, under Section 301 of H.R. 896, the President

would have the power to designate such a U.S.-based NGO as a

"terrorist" group and prohibit it from fund raising to do

this relief work. See proposed 18 U.S.C. Section 2339B(b)

and (c)(2). In contrast, H.R. 1710 would permit the

President to designate



                              7

of this aid had no intention of furthering the violent,

illegal activity of the Aide Ed faction.



     Another example of a group likely to be designated a

"terrorist" organization is the Zapatistas in Chiapas,

Mexico. If the President designates the Zapatistas a

terrorist organization, it would then become illegal to do

relief work in Chiapas, if as part of that work, a relief

organization furnished money or goods to institutions

affiliated with the Zapatistas. One can be sure that the

designation of which group is a terrorist group will be made

in large part on the basis of political concerns, and as a

result of pressure exerted by foreign governments on our

own.



     Much of this relief work would not be conducted if

criminal sanctions were threatened. The work is already

dangerous enough. The same dilemma would be faced by

organizations doing missionary work in troubled areas of the

world, if as part of that work, the organization had to pay

in money or goods an arm of an organization designated a

terrorist group.



C. Recommendation



     The proposed legislation takes a fundamentally flawed

approach to the alleged problem of fund raising for

terrorist activity, if indeed there is one.13 To pass

constitutional muster, terrorism legislation would have to

focus on activity instead of on associations. This section

should be struck altogether. Instead, Congress might

consider expanding the list of crimes in 18 U.S.C. Section

2339A to make criminal the provision of material support for

more violent activity abroad.



REPEAL OF FIRST AMENDMENT PROTECTION FOR FUNDRAISING

ACTIVITIES



A. Background



     Section 103 of H.R. 1710 (as well as Section 601 of

H.R. 896) would subject citizens and aliens to FBI

investigation tar activity protected by the First Amendment.

Last year, Congress adopted legislation prohibiting people

in the U.S. from providing "material



--------------------

only foreign organizations as "terrorist" groups.



13 To our knowledge, the Administration has made no showing

that substantial funds are being sent from the United States

to support terrorist activity abroad. Such a showing,  

including dollar amounts and the type of activity being funded, should

be a minimal prerequisite for seeking new legislation to stop such

alleged funding. Indeed, this provision should not be considered until

the Secretary of State and the Attorney General produce

data that would justify Congressional action.



                                   8

support" for terrorist acts. 14     To prevent FBI "fishing

expeditions" into activities protected by the First

Amendment, the legislation included clauses prohibiting

investigations of people: (i) who provide humanitarian

assistance to people not directly involved in criminal

activity; and (ii) engaged only in activities protected by

the First Amendment. This legislation would repeal those

modest protections and permit investigation in the absence

of facts that reasonably indicate that the target of the

investigation knowingly and intentionally has or will engage

in the violation of a federal criminal law.



B. Discussion



     The proposed legislation would repeal the following

language appearing in the statute Congress enacted to bar

people in the United States form providing material support

for certain crimes:



     (c) Investigations-



(1) In general.--Within the United States, an

investigation may be initiated or continued under this

section only when facts reasonably indicate that-

  (A) in the case of an individual, theindividual

knowingly or intentionally engages, has engaged, or is

about to engage in the violation of this or any other

Federal criminal law; and



  (B) in the case of a group of individuals, the group

knowingly or intentionally engages, has engaged, or is

about to engage in the violation of this or any other

Federal criminal law.



(2) Activities protected by the First Amendment.-An

investigation may not be initiated or continued under

this section based on activities protected by the First

Amendment to the Constitution, including expressions of

support or the provision of financial support for the

nonviolent political, religious, philosophical, or

ideological goals or beliefs of any person or group.



18 U.S.C. Section 2339A(c). In many ways, this provision,

which Section 103 of H.R. 1710 would repeal, is a model of

how the line should be drawn between support for illegal

activity and support for constitutionally protected

activity.



--------------------

14   18  U.S.C.

Section  2339A.



                                   9

     Paragraph (c)(2) is a particularly important

protection, and it is difficult to understand how this

provision, which protects against unfounded investigation of

First Amendment activity, would hamper investigation of

criminal activity. In fact, the guidelines governing FBI

investigations of such activity state specifically:



     It is important that such investigations [of criminal

activity] not be based solely on activities protected by the

First Amendment or on the lawful exercise of an other rights

secured by the Constitution or laws of the United States. 15



     The Administration, in the section-by-section analysis

provided Congress when H.R. 896 was introduced in February,

claimed that the "knowingly and intentionally" language in

subparagraphs l(A) and l(B) disrupt the "natural flow of a

criminal investigation," because these elements of the crime

might not be determined until an investigation is commenced.

However, the guidelines governing FBI investigatory activity

specifically provide for preliminary inquiries in such

circumstances, so that a determination about whether to

commence a full investigation can be made. The guidelines

say:



On some occasions the FBI may receive information or an

allegation not warranting a full investigation --

because there is not yet a "reasonable indication" of

criminal activities -- but whose responsible handling

requires some further scrutiny of initial leads. In

such circumstances, though the factual predicate for an

investigation has not been met, the FBI may initiate an

"inquiry" involving some measured review, contact, or

observation activities in response to the allegation or

information indicating the possibility of criminal

activity.



     This authority to conduct inquiries short of a

full investigation allows the government to respond in

a measured way to ambiguous or incomplete informatiqn

and to do so with as little intrusion as the needs of

the situation permit. ... It is contemplated that such

inquiries would be of short duration and be confined

solely to obtaining the information necessary to make

an informed judgment as to whether a full investigation

is needed. 16



--------------------

15 The Attorney General's Guidelines on General Crimes,

Racketeering Enterprise and Domestic Security/Terrorism

Investigations, p. 3.



16 Id. at 4.



                                  10

     Nothing in the statutory language H.R. 1710 would

delete would prohibit the FBI from conducting a preliminary

inquiry to determine whether a full investigation of

material support for terrorism should be opened. When

conducting such a preliminary inquiry, the FBI could use,

under its guidelines, investigative techniques including

questioning of informants, confidential sources and

acquaintances of the alleged wrongdoer, physical and

photographic surveillance, under cover operations and

infiltration, and electronic surveillance.



     The FBI has a history of commencing unfounded

investigations into First Amendment activity of groups,

including its investigation of the Committee in Solidarity

with the People of El Salvador (CISPES) and the Cointelpro

investigations of civil rights groups and leaders in the

1970s. Recently, the AIDS activist group ACT UP learned that

the FBI had maintained a file of over 100 pages on the

group, and refused to make most of the file public.

Moreover, the FBI recently announced that it was

"re-interpreting" the Attorney General Guidelines that

govern its domestic investigations in a manner that would

allow it to track more activities in the United States.

Against this backdrop, Congress is asked by the FBI to

repeal a substantial protection against FBI investigation of

protected First Amendment activity.



     Section 103 of H.R. 1710 would also delete from

existing law the portion of 18 U.S.C. Section 2339A

excepting "humanitarian assistance to persons not directly

involved in such violations" from the definition of

proscribed material support for terrorism. 17 Deletion of

this language suggests that a person could be "providing

material support to terrorists" if they provided

"humanitarian assistance to persons not directly involved in

such violations" of criminal law as are set forth in the

statute. If the First Amendment protective language

described above is deleted, then persons may be investigated

for engaging in such humanitarian activity. The deletion

would create even more problems for NGO's doing relief work

in troubled areas of the globe. They would lose the safe

harbor this protective language created.



C. Recommendation



     H.R. 1710 should be amended to include all portions of

the protective language recited above, or Section 103 should

be deleted from the bill altogether, to preserve these

protections as they appear in current law.



--------------------

17 H.R. 896 contains no similar provision.

DEPORTATION BASED ON SECRET BVIDENCE



A. Backqround



     The Fifth Amendment to the U.S. Constitution guarantees

that a person shall not be deprived of life, liberty or

property without due process of law. Section 601 of H.R.

1710, like Section 201 of H.R. 896, would establish a new

court that could deport aliens as "terrorists" without

allowing them an opportunity to see the evidence against

them. 18



     Section 601 of H.R. 1710 would allow for the use of

evidence kept secret from an alien in deportation

proceedings brought against an alien allegedly deport able

for engaging in terrorism activity. It provides for a new

court that would receive classified information about the

alien out of the presence of the alien and the alien's

attorney. It would commence a special removal hearing.

During the proceedings, the accused non-immigrant alien

would be held in custody, and the accused permanent resident

alien would be held in custody unless he or she could prove,

at a hearing at which classified information could be

submitted ex parte and in camera, that the alien should be

released because he or she is not likely to flee, and would

not endanger national security or the safety of any person.



     For the actual hearing, the government would summarize

any classified information to be used against the alien. The

court would approve the summary if the court found it

sufficient to: (i) inform the alien of the general nature of

the evidence that the alien is deport able as a terrorist

and (ii) permit the alien to prepare a defense. The

court-approved summary would be provided to the alien unless

the court found that there is a reasonable likelihood that

provision of the summary would cause serious and irreparable

harm to the national security, or serious bodily injury to a

person.



     In such a case, if the alien is a non-immigrant, the

alien could be deported based on the secret evidence,

examined by the court in camera and ex parte, without any

further protection. If the alien is a permanent resident,

the judge would appoint an attorney with a security

clearance ("Special Attorney") to review the secret evidence

and challenge it in an in camera proceeding on



--------------------

18 Even more striking, Section 202(d) of H.R. 896 would

allow the use of secret evidence in a deportation proceeding

against any non-immigrant alien, even if the grounds of

deportation have nothing to do with terrorism at all. It

could be used to deport a student alleged to have worked

off-campus in violation of their status, or against a person

alleged to have done nothing more than overstay a visa. This

proposal does not belong in a terrorism bill.



                             12

behalf of the alien. Such Special Attorney would be

prohibited from disclosing the secret evidence to the alien

or to the attorney chosen by the alien, at the risk of

facing a minimum of 10 years in prison .



     Section 601 of H.R. 1710 is similar to legislation

Congress declined to adopt in each of its two previous

sessions. It differs from that legislation, from H.R. 896

and from S.735, terrorism bill the Senate passed a few days

ago in that a Special Attorney acting in the alien's

interest would have access to the secret information.

Nonetheless, this procedure does not pass constitutional

muster because it denies aliens -- both permanent residents

and non-immigrants -- their due process rights to confront

the evidence against them, and in the case of permanent

residents, the due process right to choose their own

counsel.



     The government has never before used secret information

to deport an alien living in the United States. The most

fundamental requisite of due process is that any evidence

the government relies upon must be disclosed so that it can

be responded to and defended against.



     This provision of law is unnecessary. Already, the

government has the power to exclude from the United States

any alien who has engaged in terrorist activity (as broadly

defined), or about whom the Attorney General or a consular

officer has reasonable ground to believe is likely to engage

after entry in terrorist activity. 8 U.S.C. Section

1182(a)(3)(B). After entry, an alien who commits a serious

crime -- a crime of the type most of the public considers

"terrorism," is treated as follows: they are arrested, they

are held (and held without bond if they are a flight risk or

a danger to the community), they are tried, if guilty, are

convicted, are sent to prison, and in the case of serious

crimes, they are deport able at the end of their time in

prison. Instead of using this procedure, the bill would

substitute a procedure allowing the government to deport an

alien, convicted of no crime, as a terrorist, on the basis

of evidence the alien never sees.



     The Supreme Court and the lower courts have

consistently held that aliens who have entered the United

States gain the full protections of the due process clause,

and therefore cannot be deported on the basis of information

not disclosed to them. Kwonq Hai Chew v. Coldinq, 344 U.S.

590, 597 (1953) (interpreting secret trial provision not to

apply to resident alien because to do so would raise due

process concerns); Rafeedie v. INS, 880 F.2d 506 (D.C. Cir.

1989) (affirming preliminary injunction against INS attempt

to use secret information to exclude permanent resident

alien); Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992)

(declaring unconstitutional the government's attempt to use

secret information to exclude permanent resident alien). In

Matthews v. Dias, 426 U.S. 67, 77 (1976) the Court stated:



                             13There are literally millions of aliens within the

jurisdiction of the United States. The Fifth Amendment,

as well as the Fourteenth Amendment, protects every one

of these persons from deprivations of life, liberty, or

property without due process of law. Even one whose

presence in this country is unlawful, involuntary, or

transitory is entitled to that constitutional

protection.



     As recently as January, 1995, the District Court of the

Central District of California held that to deny non

discretionary relief to plaintiff aliens based on classified

information kept secret from them would deny them due

process rights. In AmericanArab Anti-Discrimination

Committee v. Reno, CV 87 2107 (January 24, 1995), Slip. Op.

(appeal pending) Judge Wilson stated:



One would be hard pressed to design a procedure more

likely to result in erroneous deprivations. As Justice

Frankfurter observed: 'Secrecy is not congenial to

truth-seeking . . . . No better instrument has been

devised for arriving at the truth than to give a person

in jeopardy of serious loss notice of the case against

him and opportunity to meet it.'



citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,

171-72 (1951) (Frankfurter, J., concurring).



     The courts have permitted the government to use

classified information only to exclude aliens who have not

yet entered the United States (U.S. ex ret. Knauff v.

Shaughnessy, 338 U.S. 537 (1950)) or to deny an alien a

discretionary immigration benefit (Jay v. Boyd, 351 U.S.

345, 357-59 (1956), reasoning that because an alien's

application for discretionary relief can be denied for any

reason whatsoever, it may be denied on the basis of secret

information) -- never to deport an alien already present.



     The danger presented by withholding from aliens the

evidence upon which they would be deported is real and

significant. In one case that went to the Supreme Court,

U.S. ex ret.,Knauff v. Shaughnessy, 338 U.S. 537 (1950)

secret evidence was allowed to be used to exclude from the

United States the alien wife of a U.S. citizen. Mrs. Knauff

was in exclusion proceedings and had not yet entered the

United States. As a result of public pressure, a hearing was

granted notwithstanding the Court's ruling that because Mrs.

Knauff had not entered the U.S., she did not have the right

to see the secret evidence. In the course of the hearing,

the secret evidence was found to be worthless because the

"confidential source" offering the evidence was determined

to be a jilted lover. Mrs. Knauff was allowed to enter the

United States. The case

provides a graphic illustration of the danger of allowing

secret



                             14

evidence to be used against aliens in deportation

proceedings.19



     Providing the secret, undisclosed evidence to an

attorney chosen by the court, not the alien, does not cure

this provision of its due process infirmities. First, the

provision only applies in the case of permanent residents --

non-immigrants would often not receive a summary of the

classified information, no Special Attorney could be

appointed to review the secret evidence and argue on behalf

of the non-immigrant alien, and he or she could be deported

based on the secret evidence.



     Second, an alien in a deportation proceedings has a

right to choose his or her own counsel under the due process

clause of the Fifth Amendment. 20  Section 601 of H.R. 1710

would deny the alien that right with respect to the review

of the secret evidence. While the alien would have the

opportunity to choose his or her own counsel for other

purposes, the court would choose the Special Attorney who

would review the secret evidence for the alien. This review

is at the very heart of the special deportation proceedings

that would be established under Section 601: without the

secret evidence, there would be no need for the special

deportation proceedings. Therefore, to deny the alien the

right to choose his counsel in connection with the

proceedings regarding secret evidence is to deny the alien

his right to counsel in these proceedings.



     Third, providing counsel, but not the alien, with

access to the secret evidence does not satisfy the alien's

due process rights. Often, it is only the alien -- not a

Special Attorney who is not even acquainted with the alien

-- who knows whether a particular piece of information is

inaccurate, or a particular source unreliable. No "Special

Attorney" would have known in the Knauff case discussed

above that the source of the secret evidence was in fact a

jilted lover. No "Special Attorney" would be in a position

to impeach such a witness because the Special Attorney would

be barred by law from disclosing the name of that witness to

the only person who would know why the witness was

unreliable: the alien client.



     These provisions contrast sharply with the Classified

Information Procedures Act (CIPA) 21 . While we believe that

CIPA



--------------------

19 See also, Charles D. Weisselberg, The Exclusion and

Detention of Aliens: Lessons from the Lives of Ellen Knauff

and Iqnatz Mezei, 143 Penn. L. Rev. 993 (April 1995)



20 Montilla v. INS, 926 F.2d 162, 166 (2nd Cir. 1991); U.S.

v. Villa-Fabela, 882 F.2d 434, 438 (9th Cir. 1989); and

RiosBerrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985).



21 18 U.S.C. App. IV, Section 1 et seq.

itself raises constitutional concerns because it can operate

to require a defendant to mount a defense with only a

summary of the classified evidence, the CIPA procedures

would be preferable to Section 601 of H.R. 1710.



     CIPA establishes a procedure by which a defendant in a

criminal case may seek to use classified information in his

or her defense. If the government objects to the use of

classified information, it can submit to the court a summary

of the classified information which must provide the

defendant with substantially the same ability to make a

defense as would disclosure of the classified information.22

The judge holds a hearing, in camera if necessary, at which

the defendant is given an opportunity to question the

adequacy of the summary. Under CIPA, if no fair summary

protecting the classified information can be provided, the

summary is rejected, the information cannot be used, and the

court sanctions the government for refusing to consent to

public disclosure, by dismissing the entire indictment or

counts of the indictment, by entering findings against the

government, or by striking the testimony of witnesses.

     

     Thus under CIPA, when a fair summary protecting

disclosure of classified information cannot be provided the

defendant, the government cannot use the classified

information. H.R. 1710 would turn CIPA on its ear: if

provision of a fair summary of the classified information

would, for example, disclose the name of an informant the

government claims could be injured if identified, no summary

would be required, the classified information would be used

as evidence to deport the alien, (a Special Attorney could

review the information and advocate for a permanent resident

alien) and the government would suffer no sanctions.



     The proposed legislation would allow the use of

classified information against the alien when a summary

could not be provided, whereas CIPA prohibits the use of

classified information in such a circumstance. This use of

classified information, kept secret from an alien, would

violate the due process rights of aliens.



C. Recommendations



     Section 601 of H.R. 1710 should be modified

substantially to track CIPA. If so modified, the alien would

receive a summary of



--------------------

22 The summary contemplated in Section 601 of H.R. 1710 does

not even meet this minimal CIPA standard. Under Section 601,

the summary would be approved if it was sufficient to inform

the alien of the "general nature" of the evidence and "to

permit the alien to prepare a defense." This is a far cry 

from a summary that provides an alien with substantially the same

opportunity to make a defense as would the secret information.



                                  16

the classified information the government sought to use

against the alien. The alien would have an opportunity to

challenge the adequacy of the summary. The summary would be

approved by the judge if the judge found that the summary

provided the alien with substantially the same opportunity

to defend in the deportation proceedings as would the

classified information. If approved, the summary would be

used by the judge to determine whether the alien is deport

able as a terrorist, and the classified information would

not be considered by the judge or be part of the record in

the proceedings. If no such summary could be provided, the

summary and the classified information would not be used in

the proceedings. In addition, proposed Section 508 would be

amended so that aliens facing deportation proceedings in the

special court would be held pending deportation proceedings

like other aliens who are a flight risk or a danger to the

community. Such an amended statute would be far more likely

to pass constitutional muster than would the current

proposal.



             RESURRECTION OF MCCARRAN-WALTER ACT



A. Background



     Section 611 of H.R. 1710 would, in principle, resurrect

the McCarran-Walter Act, repealed by Congress just a few

years ago after being ruled unconstitutional as applied to a

particular alien. It would render associations, without

more, grounds for exclusion under the Immigration and

Nationality Act because it would render excludable every

member of a "terrorist organization" designated by the

President. No analogous provision appears in H.R. 896.



     Section D of the McCarran-Walter Act allowed, among

other things, for the deportation of aliens who "advocate

the economic, international and governmental doctrines of

world communism or the establishment in the United States of

a totalitarian dictatorship, or who are members of or

affiliated with any organization" that so advocates, "either

through its own utterances or through any written or printed

publications issued or published by or with the permission

or consent of or under the authority of such organization

... ." Section F(iii) allowed for the deportation of

"[a]liens who advocate or teach or who are members of or

affiliated with any organization that advocates or teaches

... the unlawful damage, injury or destruction of property."



     The McCarran-Walter Act was used to exclude from the

United States persons on account of activities protected by

the First Amendment. Persons excluded have included Pierre

Trudeau, once the Prime Minister of Canada, and Canadian

naturalist Farley Mow at. People should be excluded from the

United States on account of their activities, not on account

of their political beliefs or their associations. Congress

repealed the McCarran-Walter Act a



                             17

few years ago and accepted the notion that aliens should be

excluded from the United States on account of their illegal

activities, not for engaging in activity that would be

protected by the First Amendment, if engaged in by a person

here.



B. Discussion



     Under current law, a person who has engaged in

terrorism, or a person about whom a consular officer or the

Attorney General has a reasonable ground to believe is

likely to engage in any terrorism after entry, is already

excludable.23



     Thus, under current law, a person who might actually

commit "terrorist activity" would be barred. The proposed

amendment is therefore not calculated to bar from the United

States such dangerous persons. Rather, it is calculated to

bar people from the United States merely on account of their

membership in an organization label led a "terrorist

organization" even if the person had never committed

terrorist activity, did not support terrorist activity, and

participated in or advocated only the legal activities of

the organization. In fact, it would bar entry to a member

who was attempting to turn the organization away from

violent activity, and who sought to come to the United

States for the express purpose of gathering support for that

position. The violent acts of others would be ascribed to

him or her merely on account of membership in the

organization. This is guilt by association in its purest

form.



     Section 611 of H.R. 1710 would amend Section

212(a)(3)(B) of the Immigration and Nationality Act (8

U.S.C. 1182(a)(3)(B)) by rendering excludable any alien who:



"[I]s a representative of a terrorist organization or

... is a member of a terrorist organization"



designated by the President upon a finding that the

organization engages in or has engaged in terrorist activity

that threatens the security of the United States.



     Section 611 of H.R. 1710 would roll back nearly two

decades of movement by Congress to bar people from the

United States on account of their illegal activities,

instead of on account of their associations and political

beliefs. It would re-introduce the notion of guilt by

association and render aliens deport able for associational

activity fully protected by the First Amendment.



--------------------

23  8 U.S.C. Section 1182(a)(3)(B)(i).  Section 611 of H.R.

1710 would also render excludable not just an alien who has

engaged in terrorist activity, but an alien about whom there

is a reasonable ground to believe has engaged in terrorist

activity --a substantially lower standard.



                             18

     Just last year, the Administration testified in

Congress against legislation that would bar from the United

States aliens based on their political beliefs and

affiliations. On February 23, 1994, Mary A. Ryan, Assistant

Secretary for Consular Affairs of the Department of State

testified that one could not presume that a member of a

group that engages in widespread social welfare programs was

a "terrorist" just because other members of the group engage

in objectionable violent activity.24 For that reason, the

Administration objected to proposed legislation that would

make mere membership in a "terrorist" organization a grounds

for exclusion.



     Moreover, the provision is not limited to groups

currently engaged in terrorist activity but would operate to

bar entry to members of organizations that have ever engaged

in terrorist activity, even if today, the organization does

not engage in terrorist activity. Under this provision,

every member of the African National Congress would be

excludable from the United States on account of past

activity of the ANC which the U.S. government deemed

terrorist activity, notwithstanding the fact that the ANC is

the governing party in South Africa, and does not today

engage in terrorist activity as it is defined in the

statute.



     This section would exclude from the United States

people who come merely to speak at conferences and

conventions, or to engage in other activity protected by the

First Amendment. Americans who invite them to come speak,

and who would like to hear them voice often controversial

points of view, have a First Amendment interest in hearing

what they have to say, and therefore in their entry into the

United States.



C. Recommendation



     This proposed section should be struck altogether.

Absent this section, current law would still render

excludable aliens who have engaged in terrorist activity, or

about whom there is a reasonable ground to believe may

engage in terrorist activity after entry.



     In lieu of striking the section altogether, an

amendment could be offered to apply the bar only to those

members of organizations currently engaged in terrorism

activity, and to ameliorate the effect of the provision on

activities that do not violate the Constitution. A similar

amendment was adopted in Section 901 of the Foreign

Relations Authorization Act for Fiscal Years 1988 and 1989

to limit the McCarran-Walter Act's negative effect on

activity



--------------------

24 Written Testimony of Mary A. Ryan, Assistant Secretary

for Consular Affairs, Department of State, Before the

Subcomm. on International Law, Immigration and Refugees of

the House Judiciary Comm., February 23, 1994, at 6-7.



                             19

protected by the Constitution. Such an amendment to 8 U.S.C.

Section 1182 could be:



"Notwithstanding any other provision of law, no alien

may be denied a visa or excluded from admission into

the United States because of any past, current or

expected beliefs, statements or associations which, if

engaged in or maintained by a U.S. citizen, would be

protected under the Constitution of the United States."



     This would restrict the Secretary of State and the

Attorney General from barring from the United States people

merely on account of their First Amendment activity, or

other activity protected by the Constitution. Similar

language can be found in current law governing exclusion for

reasons of foreign policy.25 People who have, or about whom

there is a reasonable ground to believe may after entry,

engage in terrorism activity as it is defined in the statute

would still be excludable on account of that activity.



     A similarly-worded amendment could be offered to 8

U.S.C. Section 1251 to make it clear that aliens could not

be deported from the United States merely on account of

activity protected by the Constitution.



                 FEDERALIZING STATE LAW AND

    SELECTIVE PROSECUTION ON ACCOUNT OF POLITICAL BELIEFS



A. Background



     Section 104 of H.R. 1710 (and the similar Section 101

of H.R. 896) would turn into federal "terrorism" crimes a

broad range of violent activity already proscribed by state

criminal law. These sections are so broad as to sweep in a

wide range of conduct, federalize many state laws, and

invite selective prosecution of unpopular groups for their

political beliefs.



     Section 104 of H.R. 1710 would allow federal

prosecution of acts that transcend national boundaries and

violate state laws prohibiting killing, kidnapping, or

serious assaults, and property damage that creates a

substantial risk of serious bodily injury, if: (i) a

jurisdictional base could be met; and (ii) the Attorney

General certifies that the act, or any activity preparatory

to the act, or meant to conceal its commission, is terrorism

as broadly defined in Section 315 above. In other words, the

Attorney General would be called upon to certify that the

act was intended to achieve a political or social end by

intimidating a segment of the population or influencing a

government official.



--------------------

25 See, 8 U.S.C. Section 1182(a)(3)(C)(ii).



                                  20

     All of the activity described in this section is

already a crime under the laws of the states. However, H.R.

1710 would turn these state law crimes into federal crimes

when the Attorney General makes a non-reviewable

certification that the crime was politically motivated.

Having the government presume the political opinion and

motivation of an actor, in an unreviewable determination, is

fraught with risk to the First Amendment. 26



     There is a risk that the Attorney General will make

this certification only when it is politically expedient to

do so because so many violent crimes would otherwise be

federalized. The Attorney General would be put in the

position of picking and choosing, based on an unreviewable

determination about the political motivation of the actor,

whether to prosecute such crimes as terrorist acts.



     The Senate took a much preferable approach in the

corresponding Section 102 of the terrorism bill it approved

a few days ago, S.735. The Senate chose not to federalize

state laws. The Senate bill limits to certain federal

criminal law violations the class of crimes that would

become federal terrorism offenses upon the certification of

the Attorney General. Adoption of the Senate formulation

would in part remedy the problems identified above with

respect to H.R. 1710. However, it would still grant the

Attorney General non-reviewable authority to presume the

intent of the accused.



     Section 105 of H.R. 1710 and the similar Section 102 of

H.R. 896 would create a new federal crime for conspiring in

the United States to (a) murder, kidnap, or maim outside of

the U.S.; or (b) damage property abroad that either belongs

to a government with which the U.S. is "at peace," or is a

railroad, canal, bridge, airport, airfield other public

structure or "religious, educational, or cultural property"

abroad. In either case, a predicate act to effect an object

of the conspiracy would have to occur in the U.S. These

sections are over broad and fraught with



the risk that they would be enforced only against

politically unpopular individuals and groups.



     Under this legislation, the government could prosecute

as terrorists a group of veterans that planned to rescue a

comrade in post-war Vietnam if the rescue involved blowing

the lock off of a prison door. This is the kind of activity

swept up within the



--------------------

26 The corresponding section of H.R. 896, Section 101, would

sweep in even more conduct, opening the door even wider to 

the possibility of selective prosecution. Under Section 104

of H.R. 1710, the property damage that could amount to

terrorism must create a substantial risk of serious bodily

injury to another person. No such limitation appears in

Section 101 of H.R. 896.



                             21

legislation, but unlikely to be prosecuted for political

reasons. Instead, this section would be enforced only

against unpopular groups and individuals.



C. Recommendation



     Section 104 of H.R. 1710 should be amended by deleting

references to state law and substituting therefore the

pertinent sections of federal law, and the Attorney

General's certification should be replaced by a requirement

that the government prove the intent of the actor.



    EXPANDING THE ROLE OF THE MILITARY IN LAW ENFORCEMENT



A. Background



     The ACLU opposes increased participation by the

military in law enforcement.   Section 312 of H.R. 1710

would authorize the Army, Navy, Air Force and Marines to

participate in a broad range of law enforcement activity,

including investigatory activity, upon request of the

Attorney General in cases involving "weapons of mass

destruction."



     Except in certain narrowly defined circumstances,

current federal law prohibits use of the military "as a

posse comitatus or otherwise to execute the laws." 18 U.S.C.

Section 1385. This prohibition is linked to our tradition of

civilian control of the military and to a recognition of the

dangers posed by setting the military against our own

citizens. The Posse Comitatus Act grew out of southern

opposition to the use of the military for law enforcement

during Reconstruction, as well as concern about the use of

the military to suppress labor movements. Repressive,

authoritarian regimes have frequently employed their

militaries as law enforcers. In fact, the United States

recently sent troops to Haiti for the express purpose of

putting the Haitian military out of the business of

conducting civilian law enforcement activity. Congress

should strongly resist efforts to move the United States in

this direction.



B. Discussion



     Section 312 of H.R 1710 would create a large exception

to the ban on military participation in law enforcement.

Section 312 would permit the Attorney General to request

"technical and logistical assistance" from the Secretary of

Defense in cases involving all weapons of mass destruction,

upon a certification by the Attorney General that:



(1) such assistance is needed to counter the threat

posed by such weapon or to enforce the criminal laws

relating to such weapons; and



                          22

(2) civilian law enforcement expertise is not available

to provide the required technical assistance.



Section 312 would leave "technical and logistical

assistance" undefined. However, such assistance would not

include the authority to apprehend and arrest any person.



     This provision is loosely patterned on 18 U.S.C.

Section 831(e), which similarly permits the Attorney General

to call on the military for assistance in investigating

offenses involving nuclear materials, and the phrase

"technical and logistical assistance" sounds less

threatening than military participation in law enforcement.

Nevertheless, the ACLU believes that this provision expand

military participation too broadly.



     First, it sets a lower threshold for military

involvement than does Section 831(e), or even the

corresponding Section 111 in H.R. 1635, the Administration's

proposal, both of which require a showing of an "emergency."

No emergency situation is required to justify military

involvement in civilian law enforcement under Section 312 of

H.R. 1710.  In addition, under the nuclear provision in

existing law, the Attorney General must determine that

"civilian law enforcement personnel are not capable of

enforcing the law," whereas the proposed provisions permit

the Attorney General to involve the military in civilian law

enforcement relating to certain criminal activity whenever

"civilian law enforcement expertise is not available." At a

minimum, a determination of an emergency, and of necessity,

should be prerequisites to military participation in law

enforcement.



     Second, it allows for military involvement not just in

chemical and biological weapons cases, as proposed in

Section 111 of H.R. 1-635, but in cases involving all

weapons of mass destruction. In addition to chemical and

biological weapons, such weapons include guns (other than

shotguns) with a bore of more than one-half inch in diameter

that can expel a projectile by action of an explosive or

propellant. 27



     Third, it allows for the provision by the military of

not just "technical assistance" as would be the case under

Section 111 of H.R. 1635, but of both "technical" and

"logistical" assistance.



     Fourth, it leaves the terms "technical" and

"logistical" assistance entirely undefined, opening the door

to potential military involvement in a wide range of

activity.



     Even the definition of technical assistance offered in

H.R. 1635 is troublesomely vague and potentially quite expansive.



--------------------

27 18    U.S.C.  Section  921(a)(4)(B).

Although authority to apprehend and arrest is expressly

denied, almost any other conduct may fit within the

definition. Technical assistance includes any "provision of

equipment and technical expertise," and that latter term is

not defined. Acting Assistant Attorney General Mark us told

the Senate Judiciary Committee that an identical provision

in a Senate bill:



. . . would authorize the military . . . to provide

equipment and personnel to assist in investigating,

searching, collecting and analyzing evidence concerning

the criminal use of biological or chemical weapons, and

to assist in disarming or disabling those in control of

chemical or biological weapons.



This is much more than technical assistance. The idea of the

military actively participating in searches and

investigations raises the fear cited by Sen. Nunn -- the

military is not trained to act "in accordance with due

process and civil procedures."



     Concerns about the scope of "technical and logistical

assistance" in Section 312 are heightened by the fact that

the military is already permitted by statute to provide true

technical assistance and logistical assistance to civilian

law enforcement. 10 U.S.C. Sections 371 et seq. permit the

military to provide civilian law enforcement officials with

relevant information (section 371), to make military

equipment and facilities available to them (section 372), to

train them in the operation and maintenance of equipment

(section 373(a)), and to provide them with other "expert

advice." Under the circumstances, the "technical assistance"

contemplated by Section 312 must be intended to authorize

much more active participation by the military in criminal

investigations.



     The ACLU might not object to a truly narrowly tailored

posse comitatus exception for cases involving chemical -and

biological weapons. There may be true "emergency situations"

in which civilian law enforcement authorities are incapable

of enforcing the law and in which it might be acceptable to

permit experienced military personnel to handle and disable

chemical and biological warfare agents. The statutory

exceptions proposed in Section 312 go far beyond this,

however.



C. Recommendation



     The military should not be granted such expansive

criminal investigative authority. As Senator Sam Nunn has

noted, "the military is not trained for law enforcement.

They are trained to search and destroy using massive

military force, not detect and investigate and arrest in

accordance with due process and civil procedures."



                             24

     In addition, ACLU believes that Congress should take

the opportunity presented by the recent focus on this issue

to reexamine existing law and further proscribe military

involvement in domestic law enforcement activities. In

addition to the narrow nuclear materials exception discussed

above, statutory permission for military participation in

criminal investigations can be found in 18 U.S.C. sec. 351

(concerning assassination, kidnapping, or assault on members

of Congress, the Cabinet, and Supreme Court Justices), 18

U.S.C. sec. 1116 (concerning the killing of foreign

officials, official guests, and internationally protected

persons), and 18 U.S.C. sec. 1751 (concerning assassination,

kidnapping, or assault on the President, Vice President, and

presidential staff). When investigating violations of these

sections, the Attorney General is authorized to call in the

Army, Navy and Air Force without any restrictions. 18 U.S.C.

sec. 374 authorizes military personnel to operate equipment

for specific purposes to support criminal law enforcement in

connection with violations of certain specified statutes. In

addition, 10 U.S.C. Sections 331-33 permit the President to

call in the military to suppress an insurrection against a

State government or a rebellion against the United States or

to enforce federal authority.



 OPENING CONFIDENTIAL INS FILES FOR LAW ENFORCEMENT PURPOSES



A. Backqround



     In 1986, at the same time it adopted employer

sanctions, Congress in the Immigration Reform and Control

Act of 1986 enacted a general amnesty for aliens who had

lived in the United States out-of-status for a certain

number of years. Likewise, it granted certain Special

Agricultural Workers (SAW's) the right to apply to remain

permanently in the United States. To encourage these people

to come forward and register for the general amnesty,

Congress included a provision in the legislation it adopted

to prohibit use of the information it collected through the

amnesty and SAW programs for other purposes. Without this

statutory assurance, many aliens would not have come forward

to register, for this relief, granted by Congress upon a

promise of confidentiality.



B. Discussion



     Section 631 of H.R. 1710 (as well as Section 203 of

H.R. 896) would breach that promise of confidentiality. It

throw open to law enforcement officials the photographs,

fingerprints, addresses, receipts, and confidential letters

from ministers, neighbors and friends submitted upon a

statutory promise of confidentiality by an alien to show

long term continuous presence in the United States. These

documents could be used for any criminal law enforcement

purpose against the alien if the alleged criminal activity

occurred after the application was filed and was

prosecutable as an



                             25

aggravated felony, but with out regard to the length of the

sentence that could be imposed.



     These documents were submitted on a confidential basis

and upon a statutory promise that they would be used for no

other purpose but the amnesty and SAW programs. Time and

again, advocates whom the Immigration and Naturalization

Service encouraged to help aliens prepare applications for

the amnesty and SAW programs assured fearful aliens that the

information they submitted would be used only to assess

their eligibility to participate in those programs.      The

statute promised confidentiality. Had the government wanted

to use the information submitted in the amnesty and SAW

programs for law enforcement purposes, it need not have

promised confidentiality on a blanket basis. Those who

submitted these documents have a privacy interest in the

documents. Moreover, for Congress now to renege on this

promise of confidentiality would be to hinder the INS from

conducting any similar program in the future, and indeed

from conducting any immigration program in which cooperation

of an alien would be secured by a promise of

confidentiality.



     This is yet another instance pointing up the fact that

this bill, though purportedly made necessary by the bombing

in Oklahoma City, is full of proposals unrelated to the

bombing. First, the bombing did not involve aliens at all.

Second, the proposed section 304 would not limit the breach

in the promise of confidentiality to investigations of

terrorism activity as defined in the bill, but would rather

reach to all investigation of any serious crime allegedly

committed by the applicant. Again, information submitted or

retained to carry out one government program is sought for

another purpose. It is this very kind of information

cross-use that is at the heart of the threat to the right of

privacy in the United States.



C. Recommendation



     Section 304 should be deleted in its entirety.



                   OTHER PROVISION TARGETING ALIENS



A. Backqround



     While the recent bombing in Oklahoma City is repeatedly

cited as a justification for this and other terrorism

legislation, many sections of this legislation are simply

unrelated to that incident, allegedly perpetrated by a U.S.

citizen. Sections 621, 622, and 623 of H.R. 1710, are three

such sections.   Section 621 would provide for expedited

exclusion of aliens who arrive in the United States without

valid travel documents or visas; Section 622 would prohibit

judicial review of certain orders of deportation; and

Section 623 would purport to strip due process rights of

aliens in



                             26

the United States who entered without inspection by

subjecting them to exclusion, instead of deportation

proceedings.



B. Discussion



     These provisions have nothing whatsoever to do with the

recent bombing in Oklahoma City, or with terrorism. Section

621 would establish a system making it extremely difficult

for a refugee fleeing persecution but bearing no travel

documents to obtain protection against persecution. Under

Section 621, an alien who arrives at a U.S. port of entry

without a passport or other travel document, or without a

valid visa when required to have one, would be put into

expedited deportation proceedings. In order to be admitted,

they would have to indicate an intention to apply for

political asylum, and establish, in the airport, on the

spot, after a lengthy journey, likely without access to

counsel or to documentary evidence, that they have a

credible fear of persecution. It is not uncommon for

legitimate refugees to arrive without adequate travel

documentation. Few refugees, exhausted after a long trip and

fleeing their persecutors, are likely to be able to make

this showing even if they indeed qualify as refugees. If

they fail to make the showing, they would be excluded. The

ACLU believes this process entirely inadequate to protect

those fleeing persecution. People who receive a parking

ticket are entitled to more procedural protections than

envisioned under this section.



     Section 622 would bar judicial review of certain

activities of the INS that are contrary to law. It would

strip courts of jurisdiction to entertain class action suits

brought to ensure that INS practices conform with

Congressional mandates.



     Section 623 is particularly troubling. It would make

excludable, rather than deport able, aliens who are in the

United States, but who entered without inspection. Under

current law, an alien who has effected an entry --

regardless of how this was done -- is deport able, not

excludable. An alien has effected an entry when the alien is

either: (i) physically present and inspected or admitted; or

(ii) has actually and intentionally evaded,inspection and is

not under restraint.



     An alien in deportation proceedings is protected by the

Fifth Amendment right to due process. The government bears

the burden of proving that the alien is deport able by

clear, convincing and unequivocal evidence. In contrast, in

exclusion proceedings involving a non-permanent resident, an

alien has only the rights statutorily provided by Congress.

In a deportation proceeding, the INS bears the burden of

proving the subject of the proceeding is an alien, and then

the alien bears the burden of proving a lawful entry, and if

he or she does so, the INS bears the burden of proving the

alien is deport able. In contrast, the alien in exclusion

proceedings bears the burden of showing that he or she is

admissible. The proposed section of law is in fact an

attempt to



                             27

subject aliens who have entered without inspection to this

higher burden, and to strip such aliens of the due process

rights guaranteed in the United States to all persons here.



     ACLU hopes to submit to the Committee further

supplementary analysis of these provisions.



C. Recommendation



     Because these provisions have nothing to do with

responding to terrorism or to Oklahoma City, ACLU urges that

they be deleted from this legislation.



        PROPOSED EXPANSION OF ELECTRONIC SURVEILLANCE AUTHORITY



A. Backqround



     Both H.R. 1710 and H.R. 1635 seek to expand statutory

authority to conduct wiretaps and other forms of electronic

surveillance. They would expand the list of felony

investigations in which an electronic surveillance order

could be sought, expand the authority to conduct roving

wiretaps and wiretaps without a court order, and permit the

admission of evidence obtained from unlawful electronic

surveillance.



     The ACLU opposes virtually all of these provisions.

Electronic surveillance is a particularly intrusive

investigatory technique, subject to the search and seizure

requirements of the Fourth Amendment.   Katz v. United

States, 389 U.S. 347 (1967). Wiretaps should be authorized

therefore only in the most serious cases and subject to the

most stringent protections. The proposed expansions of

wiretap authority sweep far too broadly and, in at least

some instances, probably run afoul of the Constitution.



     Equally important, such expanded authority is quite

unnecessary. Virtually all federal felonies char act,eristic

of terrorism, including those that would likely form the

basis for the Oklahoma City prosecution, are already on the

list of felony investigations for which an electronic

surveillance order may be sought. Yet the FBI has very

rarely used wiretaps in investigations of arson, bombings,

or firearms violations. Out of 8,800 wiretaps applications

filed by federal and state authorities between 1983 and

1993, only 16, less than 0.2%, were for arson, bombing, or

firearms. The last known request in such a case was filed in

1988. Congress should not be considering expanding



federal wiretap authority, when the FBI is not using the

authority that currently exists.



                             28

B. Discussion



i. Expanding the criminal investigations in which an

electronic surveillance order may be sought



     Current federal law prohibits the interception of

oral,28 wire, 29 and electronic communications, 30 except as

specifically provided. 18 U.S.C. sec. 2511. In order to

conduct electronic surveillance, the FBI or other law

enforcement authority must obtain a court order based upon

probable cause. Federal law enforcers may obtain a court

order for interception of oral or wire communications only

in connection with investigations of certain specified

federal offenses. The current list of federal offenses that

may support an electronic surveillance order covers several

pages in the U.S. Code Annotated and already includes

virtually every felony that might be committed by

terrorists, including all federal offenses involving murder,

kidnapping, robbery, or extortion; espionage, sabotage,

piracy, and treason; assassination and hostage-taking;

destruction of trains, vessels, aircraft, and aircraft

facilities; and offenses involving explosives, biological

weapons, and nuclear materials. See 18 U.S.C. sec. 2516.



     Section 301 of H.R. 1710 would expand this list of

offenses that will support a court application for

electronic eavesdropping or wiretapping. Section 106 of H.R.

1635 would permit any federal felony to support an order for

a wiretap or electronic listening device if the Justice

Department certifies that "there is reason to believe the

felony involves or may involve domestic terrorism or

international terrorism."



     The ACLU opposes either method of expanding the list of

felonies that will support an electronic surveillance order.

There has been no showing that any additional authority is

needed or that the FBI has ever failed to obtain a desired

wiretap because a particular predicate felony was not on the

list. In fact, as discussed earlier, the FBI rarely if ever

invokes most of the wiretap authority it already possesses.

Of the 8,800 electronic



--------------------

28 it "' Oral communication' means any oral communication

uttered by a person exhibiting an expectation that such

communication is not subject ~o interception under

circumstances justifying such expectation," 18 U.S.C. sec.

2510(1).



29 A "wire communication" is "any aural transfer made in

whole or in part through the use of facilities for the

transmission of Communications by the aid of wire, cable, or

other like connection," Id., sec. 2510(2).



30 An "electronic communication" is "any transfer of signs,

signals writing, images, sounds, data, or intelligence of

any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photo electronic or photo optical system,"

that is not an oral or wire communication. Id., sec.

251-0(12).



                             29

surveillance applications filed between 1983 and 1993, over

three quarters concerned suspected violations of drug and

gambling laws. Most of the rest involved racketeering

investigations. Not once since 1988 has the FBI reported

seeking electronic surveillance authority in a case

involving bombing, arson, or firearms.



     Because bugging and wiretapping are particularly

intrusive investigatory techniques that undermine the

personal privacy we all cherish, they should be permitted

only when investigating the most serious crimes. The

government has made no showing of need for this additional

authority, let alone a showing that its need for more

wiretaps outweighs the threat to privacy such expanded

authority would pose.



     The ACLU is especially concerned by the proposal in

H.R. 1635 to expand wiretap authority whenever the Justice

Department certifies that "there is reason to believe the

felony involves or may involve domestic terrorism or

international terrorism." First, such a provision would

weaken the probable cause standard for obtaining an

electronic surveillance order. Right now, before issuing

such an order, a judge must first determine that there is

probable cause to believe "that an individual is committing,

has committed, or is about to commit a particular offense

enumerated in section 2516" and also probable cause to

believe that "particular communications concerning that

offense will be obtained through such interception.1'3l

Because the Justice Department "terrorism" certification

would not be subject to judicial review, the court would

make no determination that it was supported by probable

cause, and therefore will be unable to make a true probable

cause determination about whether the subject of the

surveillance is connected to an enumerated offense.



     Equally important, we are deeply concerned by the idea

that the Attorney General can evade statutory limits on

investigations simply by invoking the frightening specter of

terrorism. Civil liberties are often compromised in times of

fear. During World War II, fear of domestic terrorism led to

the unjustifiable internment of many thousands of American

citizens of Japanese heritage. Fear of the communist threat

led to the unconstitutional excesses of the House

Un-American Activities Committee in the McCarthy Era and the

unlawful Cointelpro surveillance and infiltration of

peaceful political protest groups in more recent times.

Given this history, we must vigorously oppose any

legislation that permits an assertion of "terrorism" to

override statutory protections.



     ii. Expanding authority for emergency wiretaps 

     

     Section 308 of H.R. 1710 seeks to expand authority to

conduct



--------------------

31  18 U.S.C. Section 2518(3).



                                  30

emergency wiretaps without court authorization. 32 The ACLU

opposesthis provision as unnecessary, open ended, and

possibly unconstitutional.



     Under current law, law enforcement officials can, under

certain circumstances, set up emergency electronic

surveillance without a court order. Specifically, 18 U.S.C.

Section 2518(7) authorizes an emergency wiretap if a law

enforcement official determines that



(A) an emergency situation exists that involves--

(i) immediate danger of death or serious physical

injury to any person,

     (ii) conspiratorial activities threatening the national 

     security interest, or

     (iii) conspiratorial activities characteristic of 

     Organized Crime



and the official believes that there are sufficient grounds

for a court to issue a wiretap order. 33



     Section 308 would create a new category of "emergency

situations" to include conspiratorial activities involving

domestic terrorism or international terrorism, as broadly

defined (see discussion above.)



     Such an expansion of emergency wiretap authority is

unnecessary. If there is either an immediate danger of death

or serious physical injury or a threat to our national

security interests, an emergency wiretap can be obtained

under current law. No showing has been made that there are

cases of terrorism involving neither an immediate threat to

persons or a threat to our national interests that

nevertheless justify a warrant less wiretap. Given that only

sixteen wiretaps concerning arson, bombings, and firearms

have been sought in the past twelve years, it seems highly

unlikely that there can be many, if any, cases falling into

this category.



     In addition, the proposed definition of "domestic

terrorism" in H.R. 1710 Section 315 makes this emergency

wiretap proposal even more open ended. Virtually any violent

act can be described as "coercing a segment of the

population." Therefore, "conspiratorial activities involving

domestic terrorism" sufficient to trigger an



--------------------

32 The Senate decisively rejected an amendment to its

terrorism bill that would have granted this additional

authority to conduct a wiretap without first obtaining a

court order.



33 After establishing the emergency wiretap, the law

enforcement official must apply for an order approving the

interception within 48 hours. Id.



                             31

emergency wiretap could be almost any information about the

possible commission of a violent act, if the act "appeared"

to be intended to achieve "political or social ends." The

narrow emergency wiretap exception would threaten to

overwhelm the rule requiring a prior court order.



     Finally, we believe that there are serious doubts about

the constitutionality of the proposal. As noted earlier, the

Supreme Court has determined that electronic surveillance is

subject to the requirements of the Fourth Amendment. Katz v.

United States, 389 U.S. 347 (1967); Berqer v. New York, 388

U.S. 41 (1967). Under the Fourth Amendment, a warrant is

generally required before law enforcement personnel can

conduct a search or seizure. The Supreme Court has

recognized certain exigent circumstances under which a

search or seizure can be conducted without a warrant.

Immediate danger of death or serious bodily injury or a

threat to national security may be a sufficiently exigent

circumstance to justify a warrant less wiretap. In the

absence of a threat to persons or the national interest,

however, it is hard to imagine what "emergency" exists that

would justify carrying out a Fourth Amendment search and

seizure without court authorization. Congress should

therefore tread very carefully in this area and we urge that

the House, like the Senate did, reject this expansion of

wiretap authority.



     iii. Expanding authority for roving wiretaps



     Section 309 of H.R. 1710 seeks to expand authority to

conduct "roving" wiretaps of wire and electronic

communications. The proposal is likely unconstitutional and

should be rejected.



     The Fourth Amendment requires that a warrant, to be

valid, must "particularly describ[e] the place to be

searched and the persons or things to be seized." In

conformity with this constitutional command, 18 U.S.C.

Section 2518 generally requires that each electronic

surveillance application and order contain "a particular

description of the nature and location of the facilities

from which or the place where the communication is to be

intercepted."    18 U.S.C. Section 2518(1)(b)(ii);

id.(3)(d). Subsection 11 contains two exceptions to this

requirement. For interception of oral communications,

section 2518(11)(a) forgoes this particular place

requirement if "specification is not practical." However,

for interceptions of electronic and wire communications,

Section 2518(11)(b) requires a showing that the person whose

communications are to be intercepted has the purpose "to

thwart interception by changing facilities." H.R. 1710 would

adopt the lesser standard that currently applies to roving

bugs for roving wiretaps.



     The ACLU is concerned that roving wiretaps, to a far

greater extent than roving bugs, would result in the

inevitable interception of many innocent communications by

persons other than



                             32

the subject of the order. H.R. 1710 would grant the FBI the

authority to wiretap all of the phones that might be used by

their target. This threatens the privacy of all other

persons who would use those phone, which cannot be justified

without some showing of necessity.



     More importantly, this provision of H.R. 1710 is in all

probability unconstitutional.        Courts upholding the

constitutionality of the roving wiretap provisions of

Section 2518(11) have stressed the intent to thwart as a

justification for the lack of particularity. See, e.g.,

United States v. Silverman, 732 F.Supp. 1057 (S.D.Cal.

1990), aff'd in relevant part, United States v. Petti, 973

F.2d 1441 (9th Cir. 1992). More importantly, courts

upholding the roving exception for electronic bugs have

emphasized the fact that the "impracticality" of

specification was caused by the target's efforts to thwart

interception. See, e.q., United States v. Bianco, 998 F.2d

1112 (2d Cir. 1993). Absent an effort to thwart

interception, it seems highly unlikely that an

unparticularized order would pass muster. Congress should

reject this provision as well.



     iv. Admitting evidence from unlawful wiretaps



     H.R. 1710 also proposes an unconstitutional abandonment

of the Fourth Amendment as it applies to electronic

surveillance. At present, 18 U.S.C. Section 2515 codifies

the constitutional requirement that information obtained

from an unlawful search and seizure may not be introduced as

evidence in court. It bars the admission of evidence derived

from an unlawful wiretap or electronic bugging device in any

judicial, legislative, or regulatory proceeding.



     The Section 306 of H.R. 1710, like Section 105 of H.R.

1635, would rip a gaping hole in this statutory exclusionary

rule. It would amend 18 U.S.C. Section 2515 to provide that

the requirement that evidence be excluded "shall not apply

to the disclosure by the United States in a criminal trial

or hearing or before a grand jury of the contents of a wire

or oral communication, or evidence derived therefrom, unless

the violation of this chapter involved bad faith by law

enforcement."



     No explanation has been offered by the FBI to show why

it purports to need this new authority to use illegally

obtained evidence. It certainly cannot have anything to do

with the need to combat terrorism, the ostensible purpose

for this legislation, given the paucity of requests for

wiretapping authorization in such cases over the past ten

years.



     In the ACLU's view, this section is unconstitutional.

Although the Supreme Court has in recent years announced

certain limitations on the exclusionary rule for evidence

obtained in



                             33

violation of the Fourth Amendment, the blanket exemption for

law enforcement malfeasance found in Section 306 goes far

beyond anything permitted by the Supreme Court. In United

States v. Leon, 468 U.S. 897 (1984), the Supreme Court

permitted the introduction of evidence derived from an

unconstitutional search undertaken in good faith reliance on

a defective search warrant. Similarly, earlier this term in

Arizona v. Evans, 63 U.S.L.W. 4179 (March 1, 1995), the

Supreme Court held that the exclusionary rule did not apply

to an unlawful search based upon a reasonable, but mistaken,

good faith belief that a warrant was outstanding.



     To date, however, the Supreme Court has continued to

adhere to the exclusionary rule in cases involving warrant

less searches; yet Section 306 of H.R. 1710 would authorize

the admission of evidence from an unconstitutional search,

even if no court authorization had ever been sought.

Likewise, in the two cases cited above, the Supreme Court

limited the exclusionary rule in cases where law enforcement

officers could demonstrate that they had acted in good

faith;34 this section would reverse the presumption and

admit evidence unless the defendant can prove that the

officers acted in bad faith. Evidence of the circumstances

of the unconstitutional search and seizure will inevitably

be in the possession of the officers, and it will be

extremely difficult for a defendant to establish that they

acted with an improper motive. Thus law enforcement

officials will be given an incentive to operate close to the

constitutional margin in conducting wiretaps on the theory

that, even if their actions are unconstitutional, frequently

they will nevertheless be able to use the evidence in court.

This is precisely the reverse of the incentives for

conscientious, constitutional behavior that the exclusionary

rule was designed to evoke. For both these reasons -- the

extension of an exclusionary rule exception to warrant less

searches and the conversion of a good faith exception into a

requirement of a bad faith showing -- we expect that the

courts will reject this provision as unconstitutional. It

would be far better for the House to itself reject this

unconstitutional legislation, especially as it has nothing

to do with the counter terrorism purpose of H.R. 1710.



C. Recommendation



     ACLU believes that none of these dangerous proposals

should be adopted. Instead of adopting proposals to expand

wiretap authority found in H.R. 1710, Congress might

consider ordering a study and report on electronic

surveillance. Such a study should consider the infrequent

request for electronic surveillance in anti terrorism

investigations and solicit input from civil liberties groups

about



--------------------

34 In one case the officers relied upon what appeared to be

a valid search warrant, while in the other case they relied

on an erroneous report in a police com~uter that a valid

warrant had

been issued and remained outstanding.



                             34

ways in which necessary investigations can be conducted

consistent with our constitutional liberties.



       PROPOSED EXPANSION OF COUNTERINTELLIGENCE INVESTIGATIONS



A. Backqround



     The foregoing provisions all relate to governmental

authority to conduct investigations of potential violations

of criminal law - past, present, or future. Other provisions

of both H.R. 1710 and H.R. 1685 seek to expand federal

authority to conduct investigations of persons in this

country for purposes other than crime prevention, detection,

and prosecution. The federal government asserts authority to

conduct "counterintelligence investigations" as an aspect of

the executive power to protect national security. Without

identifying a potential violation of law, the Executive

claims the power to investigate U.S. citizens to prevent

foreign intelligence activities and identify persons acting

as agents of a foreign power.



     Most foreign intelligence operations that could be

conducted within the United States, as well as most acts of

international terrorism, violate provisions of U.S. criminal

law and could give rise to a lawful criminal investigation.

Nevertheless, law enforcement asserts that it needs to be

able to conduct noncriminal counterintelligence

investigations under a national security rationale.   Both

H.R. 1710 and H.R. 1635 seek to expand the statutory

authority to employ various investigative techniques in such

noncriminal, counterintelligence investigations.



     The ACLU opposes the investigation of persons in this

country without a criminal basis and believes that such

investigations are generally unconstitutional infringements

on individual liberty. The additional investigatory powers

sought for counterintelligence investigations in both bills

are already available to law enforcement authorities

conducting criminal investigations. We therefore oppose

expanded authority to carry out counterintelligence

investigations in order to discourage any increased use of

these practices, which are essentially unrestrained by law.



     Before turning to the specific powers sought, we note

once again that these legislative proposals have nothing to

do with the recent tragedy in Oklahoma City. The

investigations into the bombing of the Alfred P. Murrah

building presumably are all criminal investigations, subject

to the laws and guidelines for such investigations, not the

separate provisions relating to counterintelligence

activities. Federal authorities already possess all of the

investigatory powers they need to thoroughly investigate the

Oklahoma City bombing. The provisions discussed below merely

seek to extend these powers to noncriminal



                             35

investigations, that have nothing to do with the bombing in

Oklahoma City.



B. Discussion



     i. Expanding authority to use pen registers and trap

     and trace devices in counterintelligence investigations



     Section 302 of H.R. 1710 (like Section 101 of H.R.

1635) seeks to expand the permissible uses of and lower the

showing required to obtain authorization to utilize a pen

register or a trap and trace device in a counterintelligence

investigation. A pen register is a "device which records or

decodes electronic or other impulses which identify the

numbers dialed or otherwise transmitted on the telephone

line to which such device is attached," 18 U.S.C. Section

3127(3), i.e., it records the telephone numbers of outgoing

calls. Conversely, a trap and trace device is "a device

which captures the incoming electronic or other impulses

which identify the originating number of an instrument or

device from which a wire or electronic communication was

transmitted," 18 U.S.C. Section 3127(4), like a Caller I.D.

device.



     Under current law, the government may obtain a court

order authorizing the installation and use of a pen register

or trap and trace device by submitting an application that

includes a certification that "the information likely to be

obtained is relevant to an ongoing criminal investigation"

being conducted by the requesting law enforcement agency. 18

U.S.C. Sections 3122-23. However, in order to obtain

authorization for a pen register or trap and trace device in

a counterintelligence investigation, it appears35 that the

government must satisfy the requirements for issuance of a

court order under the Foreign Intelligence Surveillance Act

(FISA), 50 U.S.C. Sections 1801 et seq. The applicant must

establish by probable cause that (1) "the target of the

electronic surveillance is a foreign power or an agent of a

foreign power" and (2) "each of the facilities at which the

electronic surveillance is directed is being used, or is

about to be used, by a foreign power or an agent of a

foreign power." 50 U.S.C. Section 1805(3). In addition, the

application must certify that the purpose of the

surveillance is to obtain foreign intelligence information

and that the information cannot be obtained by normal

investigative techniques. 50 U.S.C. Section 1804(a)(7).

Finally, FISA requires the use of "minimization procedures,"

that is, specific procedures designed to "minimize the

acquisition and retention, and prohibit the dissemination,

of



     35. Pen registers and trap and trace devices are not

expressly Mentioned in the Foreign Intelligence Surveillance

Act. Because ~hey involve the interception of an electronic

communication, they appear to be subject to the Act's general

requirements for electronic surveillance orders.



                                  36

nonpublicly available information concerning unconsenting

United States persons." 50 U.S.C. Section 1801(h)(1).



     Section 302 of H.R. 1710 would replace the showing

required under FISA with one similar to that required in a

criminal investigation. Specifically, Section 302 would

authorize the installation and use of a pen register or trap

and trace device upon a certification that "the information

likely to be obtained is relevant to an ongoing foreign

counterintelligence investigation. 1136 This change would

not simply reduce the showing required to utilize these

devices in a counterintelligence investigation. More

importantly, this change would appear to permit, for the

first time, the federal government in counterintelligence

investigations to employ pen registers and trap and trace

devices against United States persons who are not themselves

suspected of being agents of a foreign power.



     As noted earlier, virtually all foreign intelligence

activities potentially violate one or more federal criminal

laws. It should therefore not be difficult, in an

appropriate case, to open a criminal investigation and

obtain authorization for pen registers and trap and trace

devices under existing 18 U.S.C. sec. 3123.      If the FBI

insists on proceeding through a counterintelligence

investigation, it should be required to make the heightened

showing required by FISA before utilizing such devices. The

House should reject this proposal.



     ii. Granting authority to compel production of

     sensitive consumer information in counterintelligence

     investigations



     Section 303 of H.R. 1710 and Section 102 in H.R. 1635

seek for law enforcement authority to compel consumer

reporting agencies to disclose sensitive consumer

information in connection with counterintelligence

investigations. They would amend the Fair Credit Reporting

Act, 15 U.S.C. sec. 1681 et seq., in a number of ways. They

would require a consumer reporting agency to disclose a

consumer's name, address, former addresses, current.and

former places of employment, and the names of all financial

institutions at which the consumer maintains or has

maintained an account, upon a written request from the FBI

that certifies that the "information is necessary for the

conduct of an authorized foreign counterintelligence

investigation" and that there are specific and articulable

facts giving reason to believe that the consumer is an agent

of a foreign power engaged in international terrorism or





     36. Curiously, the section as revised apparently

contemplates that state law enforcement officials would 

conduct thier own foreign counterintelligence operations, 

and similarly grants them the opportunity to use pen

registers and trap and trace devices in such state

investigations.



                             37

clandestine intelligence activities or that the consumer is

about to be in contact with a foreign power or its agent. In

addition, both bills would authorize the FBI to obtain

consumer credit reports by means of an ex parte court order

issued upon a similar in camera showing. Both bills would

also prohibit consumer reporting agencies from informing the

consumer of these compelled disclosures and would limit the

remedies available for violations of the consumer's rights.



     Again, the proposed changes should be rejected as

ill-advised and unnecessary. If the FBI is in a position to

make a representation that a person is an agent of a foreign

power engaged in international terrorism or clandestine

intelligence activities in violation of the laws of the

United States, then the FBI has the "reasonable indication"

necessary under its guidelines to open a criminal

investigation. The Fair Credit Reporting Act already

authorizes consumer reporting agencies to disclose consumer

reports "[i]n response to the order of a court."  15 U.S.C.

sec. 1681b(1). Thus the FBI can obtain all of the desired

records by opening a criminal investigation and issuing

grand jury subpoenas or comparable court orders. It does not

make sense to establish a separate, counterintelligence

process for obtaining this information which is more

insulated from court review (37).



     Again, this expanded authority has nothing to do with

the FBI's ability to investigate the Oklahoma City bombing

or similar acts of domestic terrorism. Those are criminal

acts that may properly be investigated as crimes, with all

of the investigatory tools there available to law

enforcement, as well as the protections for violations of

individual rights.



     iii. Granting authority to compel production of common

     carrier and public accommodations records in

     counterintelligence investigations



     Both Section 304 of H.R. 1710 and Section 104 of H.R.

1635 seek to authorize the FBI to gain access to common

carrier and public accommodations records in foreign

counterintelligence investigations. These provisions violate

the principle that the 

government should be obliged to abide by criminal investigatory

processes when investigating persons within its borders.



     37. The Administration has sou~qht to justify this

change by analogy to 12 U.S.C. sec. 3414(a)( )(A), which 

establishes a similar procedure for obtaininq records

protected under the Right to Financial Privacy Act. While

there are obviously some 

parallels between financial records and consumer credit

records, the ACLU submits that the appropriate response, if

any, is to repeal the special national security process for

obtaining financial records.

                             38

     Section 304 of H.R. 1710 applies to the records of

common carriers, public accommodation facilities, physical

storage facilities, and vehicle rental facilities. It would

require such entities to comply with an FBI request for

records so long as the FBI certifies in writing that the

records are sought for foreign counterintelligence purposes

and that there are specific and articulable facts giving

reason to believe that the person to whom the records

pertain is a foreign power or an agent of a foreign power.



     Section 304 sweeps up a broad assortment of records

without any showing that such broad authority is necessary

and it fails to establish a procedure to challenge an over

broad or otherwise unreasonable or improper request for

records.



     This problem is minor compared to the larger problem:

the proposal represents an unwise and unnecessary expansion

of the FBI's power to conduct noncriminal investigations.

All of these records can easily be obtained by grand jury

subpoena in a lawful criminal investigation. No showing has

been made that the grand jury process is somehow inadequate

to meet legitimate law enforcement needs in investigating

the Oklahoma City bombing or other terrorist acts. Congress

should insist that the FBI employ that process to obtain

records on the activities of U.S. persons; the FBI should be

deterred from conducting more investigations without a

criminal predicate.



     iv. Expanding authority to obtain telephone billing

     records in counterintelligence investigations



     Section 310 of H.R. 1710 and Section 109 of H.R. 1635

seek to increase the federal government's ability to compel

disclosure of telephone toll and transactional records in

counterintelligence investigations. 18 U.S.C. Section 2709

currently authorizes the FBI to obtain "subscriber

information and toll billing records information, or

electronic communication transactional records" from a wire

or electronic communication service provider in connection

with a counterintelligence investigation in,accordance with

procedures therein specified. Apparently an issue has arisen

about whether "toll billing records" include records of

local telephone usage or only long-distance services.

Section 310 would modify section 2709 to make it clear it

applies to both "local and long distance toll billing

records."



     The ACLU does not perceive a meaningful difference

between local and long distance toll billing records that

would justify differential treatment. Nevertheless, for the

reasons we have repeatedly identified in this discussion, we

must oppose this change as well. The FBI and other law

enforcement agencies are perfectly able to obtain both local

and long distance records by subpoena in a proper criminal

investigation. Rather that expanding the FBI's powers to

conduct unreviewable counterintelligence



                             39

investigations essentially unrestrained by law, Congress

should be considering repeal of section 2709 so as to

encourage the FBI to conduct its investigations through the

criminal process.



C. Recommendation



     We urge Congress to reject each of these proposals to

conduct intrusive investigatory activity without a criminal

predicate. People in the United States understand that when

there is evidence of crime, the FBI should investigate, and

focus its investigation on the possible perpetrators of

crime. They become uneasy, however, when authority to

conduct intrusive investigatory activity is requested in

cases outside of this sphere of criminal investigations. The

bombing in Oklahoma City, which is a crime, should not be

used as an excuse to give the FBI more tools and authority

to investigate activity that is not a crime.



FORCING PRIVATE INDUSTRY TO FACILITATE SPYING ON ITS

CUSTOMERS



A. Backqround



     Sections 401 and 40Z of H.R. 1710 would amend the

Communications Assistance for Law Enforcement Act by

creating a funding mechanism for the costs of retrofitting

the telephone system in the United States to enhance the

ability of law enforcement officials to wiretap telephones

of American citizens.



B. Discussion



     The above-referenced digital wiretapping law is

extremely troubling. Congress required phone companies to

re-build switching devices to enhance the ability of the FBI

to wiretap. Under this profoundly troubling logic, Congress

could similarly require home builders to include listening

devices in the walls of the houses and apartment buildings

they construct so that the FBI could turn on the microphones

if one day it needed to do so. This idea was wrong when

adopted, and it would be wrong to fund that idea program

today, particularly in light of the distrust of government

exposed in the wake of the tragedy in Oklahoma City.



C. Recommendation



Sections 401 and 402 should be struck from H.R. 1710.



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                              CONCLUSION



     Many provisions of H.R. 1710 run afoul the Bill of

Rights. Moreover, much of the bill, which concerns aliens

and expanding FBI counterintelligence investigative

authority, has nothing to do with the bombing in Oklahoma

City. ACLU urges the Committee to carefully reconsider this

legislation, and to strip away the parts that would make us

no safer, just less free.



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