1995年美国国会听证会
情报和安全

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.l� 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. 40 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. 41