1995年美国国会听证会
情报和安全

STATEMENT OF JOHN H. SHENEFIELD BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES CONCERNING THE COMPREHENSIVE ANTITERRORISM ACT OF 1995 H.R. 1710 PRESENTED ON JUNE 13, 1995 TESTIMONY OF JOHN H. SHENEFIELD Mr. Chairman and Members of the Committee, I am pleased to testify in connection with the Comprehensive Anti terrorism Act of 1995, H.R. 1710. I serve as Chairman of the American Bar Association's Standing Committee on Law and National Security, which is composed of eleven senior lawyers with expertise and experience in dealing with the legal aspects of national security issues. The Standing Committee sees its role as educating America's lawyers on the importance of the rule of law in the national security arena. This testimony, however, is not delivered on behalf of the American Bar Association and does not purport to represent its official policy or position. Nor can it represent in any official way the position of the Standing Committee. Instead the testimony does reflect a rough informal consensus of members of the Standing Committee, which has been analyzing several legal issues related to terrorism in recent years, and seeks to make available to the Congress some of the lessons distilled from that analysis. In general, I support the Comprehensive Anti terrorism Act of 1995. I believe it strikes an appropriate balance between the prevention of terrorism and the efficient apprehension and conviction of terrorists, on the one hand, and the protection of civil liberties on the other. The bill undertakes to resolve some extremely vexing issues, and it does so in an admittedly aggressive way. I applaud the determination of the Executive Branch and the Congress to bring the full weight of federal law enforcement, within constitutional limitations, to bear on terrorism. At the outset, let me suggest the appropriate analytical context within which to consider the proposals contained in H.R. 1710, or indeed any other proposals. First and foremost, as Americans we live in an open society undergirded by the rule of law. In seeking to combat terrorism, we are defending that way of life -- it is what we are fighting for. Therefore, in seeking to deal effectively with the problems of terrorism, domestic and international, we must be vigilant to preserve and maintain the openness of our society and the legality of our counter terrorism policies and practices. Our citizens must be clear on this essential point; so also our security officials. How then to deal with the immense variation in terrorist activity? How best to develop a sufficiently flexible response so that truly serious threats can be investigated without impinging unduly on civil liberties? To these questions, there are no simple answers. The key concepts are balance and proportion. Not all terrorists are created equal. Not all terrorist acts are equally threatening. Yet some terrorism can strike at the very heart of an open society. Government must therefore have at hand - 2 - capabilities to deal with conspiracies of the most dreadful import, where loss of time or investigative effectiveness risks catastrophe. At the same time, not all investigative powers need to be used in every case. Certain of the most intrusive techniques should be thought of, and regulated within the government, as techniques of last resort. In part, the judgment of balance and proportionality is a legislative one. Powers that can never be used in our society should never be legislated into existence. That is not, to state the obvious, a justification for failing to provide society -- and its government -- with the ability to use powers in times of emergency or need. The investigative tool, kept in reserve, is nevertheless available for use when needed. To put it beyond use, even when needed, would be both unwise and immoral. But the judgment on balance and proportionality is also a question for the Executive Branch, for the implementers of the policy, for the security officials. It is not common in Washington in these days to be reassured by such a statement, and yet it must be the case. Our government, and especially our law enforcement agencies, and most especially the Department of Justice, are operated by men and women of great competence and dedication who work long hours, mostly without recognition, to protect and defend our open society under the rule of law. Until the contrary is demonstrated as to any individual, I strongly believe that a presumption of integrity and legality should be accorded our law enforcement community. And it is that presumption that must ultimately guide the members of Congress in assessing the proposals in this bill. - 3 - That is not to say that mistakes will not be made. Of course they will -- that is the price we pay for living in the real world. But they will certainly be infrequent, and when they are made, they are more often than not failures of the system rather than examples of the system gone bad. The overheated rhetoric about government conspiracies to deprive citizens of their rights is wrong. The notion of investigative agencies straining at the leash to break the law is wrong. The fear that government officials, when given great power, will always or sometimes or ever abuse that power is mostly wrong. We must always be alert to that possibility; we cannot be immobilized by it. And so, the question to ask of any proposal in H.R. 1710 is whether on balance it is proportional to the danger that it targets -- flexible enough to be available when necessary, under appropriate safeguards and regulation. And what are the ways to ensure that these great powers are actually used only in the appropriate cases? I. Substantive Criminal Law Enhancements (Title I) The purpose of this title is to provide a surer and more comprehensive basis for the response of federal law enforcement to acts of international terrorism both within the United States and overseas. It establishes, really for the first time, a coherent statutory framework that would permit the federal government to attack complicity in - 4 - acts of international terrorism across a broad front of jurisdictional rationales, regardless of the sit us of the terrorist acts or the nationality of the offender. It also enhances our ability to deal with extra territorial terrorist acts. Section 102 prohibits the provision of support and resources to terrorist organizations so designated by the President of the United States, pursuant to an amendment to the Immigration and Nationality Act found in proposed section 611. Unlike some earlier versions (e.g., H.R. 896), H.R. 1710 makes no exception for funding intended exclusively for religious, charitable, literary or educational purposes. No doubt the problems of policing and enforcement inherent in any such licensing regime persuaded the drafters that it was essentially unworkable. Nevertheless, the Committee might be well advised to consider whether inclusion of some such exception and regulation, which might bear some resemblance to that of the International Emergency Economic Powers Act, 50 U.S.C. 1701-06, together with certain legislative findings to undergird the reach of the prohibition, would improve the ability of the statute to withstand constitutional challenge without detracting from its effectiveness. If the Committee were so minded, we would suggest a number of technical changes to the versions incorporated in earlier statutes, and would be happy to work with the Committee's staff to produce the optimal statutory language. I am confident that any such provision will be upheld by the courts on national security grounds and as within the foreign affairs powers of the Executive Branch. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981). - 5 - Section 104 creates a new violation of federal law, "Acts of Terrorism Transcending National Boundaries." It is important that the law contain the most complete exercise of federal jurisdiction possible in connection with terrorist acts within the United States, as well as establish stringent penalties. Subsection (b) contains a catalog of jurisdictional bases currently approved by federal courts. Subsection (d) provides an important limitation on prosecution, and requires the critical exercise of judgment as to balance and proportionality. Under this provision, no indictment or information may be sought unless the Attorney General, or the highest ranking subordinate of the Attorney General with responsibility for criminal prosecutions, has made a written certification that the offense, or any act of preparation or concealment, is terrorism as defined in proposed section 315. The fixing of individual responsibility for the certification, as is true in other statutory contexts, is an effective method of ensuring the integrity of the implementation of the statute's clear intention that section 104 is used only to prosecute terrorism. This is quintessentially the kind of judgment we expect our highest federal law enforcement officials to make. The certification process and retrospective congressional oversight can combine to ensure that such judgments are carefully and correctly made. Proposed section 105 ("Conspiracy to Harm People and Property Overseas") would substantially expand the very limited federal jurisdiction that now exists in section 956 of Title 18 to prosecute conspiracies carried out in part within the United - 6 - States to commit terrorist acts overseas. Section 105 complements section 104, dealing with international terrorist acts within the United States, so that federal prosecutors have the flexibility and scope to investigate and prosecute those who conspire to commit, as well as those who actually commit, terrorist acts both within the United States and around the world. The technical amendments of 106-111 are wholly appropriate, as are the increased penalties provided for in Title II. II. Investigative Tools (Title III) Title III contains a number of enhancements to the capability of federal law enforcement to investigate terrorism or engage in foreign counterintelligence investigations. Each of these provisions seems a sensible but limited expansion of current authority. Each also employs an implicit balance between the government's investigative needs and the individual's right of privacy. Running throughout is the requirement that responsible officials exercise the critical judgment as to balance and proportionality. Section 301 expands the federal authority to seek court-ordered electronic surveillance in connection with terrorism-related offenses. This section engages not just the panoply of internal Justice Department regulation, but also requires a 15-day report to the appropriate federal judge. Wiretaps should of course be available in connection with the most serious crimes, and there can be little doubt that those added to 18 U.S.C. - 7 - 2516, which would include protection of U.S. officers and employees, murder of foreign officials, presidential assassination, terrorist acts abroad and within the United States, fall within that category. It is hardly persuasive to argue that existing authority is used infrequently; indeed, that should be a basis of reassurance that electronic surveillance is an investigative technique to be used as a last resort. Section 308 sensibly expands the authority for temporary emergency wiretaps in connection with crimes of terrorism. Objection to this provision has been raised on the ground that existing law, permitting emergency wiretaps where the emergency involves immediate danger of death or serious physical injury to any person, conspiratorial activities threatening the national security interest, or conspiratorial activities characteristic of organized crime, already provides sufficient legal basis. But international and domestic terrorism can take unforeseen forms with unpredictable consequences, and may not easily fit existing legal categories. The provision assumes that the Attorney General has made a reasonable determination that an intercept must be made before an order can be obtained in the ordinary course, even with due diligence. This provision, giving federal law enforcement flexibility in exigent circumstances, seems particularly wise. Section 309 provides for expanded authority for multi-point, or roving, wiretaps. Under current law, roving wiretaps are permissible only upon a showing that the subject's use of different telephones is intended to thwart law enforcement - 8 - investigations. The new provision removes that inefficient requirement, and substitutes instead the more practical requirement that senior law enforcement officials and the judge to whom the application is made find that specification of the telephone to be tapped is impractical, the same standard that exists in current law for multi-point listening devices. The fourth amendment requires that in its request for a search warrant the government particularly describe the premises to be searched. In the case of wiretaps, traditionally the fourth amendment's particularity provision has been construed to require the government to specify the location of the telephone to be tapped, unless the special finding of an attempt to evade can be made. In theory, removal of the special finding for oral communications has the potential for giving inadequate emphasis to the constitutional particularity requirement, which is designed to avoid the surreptitious interception of the telephone calls of wholly innocent people. As a matter of practice, constant physical surveillance guarantees that the subject of the investigation -- and no one else -- is actually using the telephone to be tapped. As a practical matter, therefore, the provision is constitutionally sound. Nevertheless, to avoid any doubt and to align the statutory provision more completely with actual practice, we suggest the insertion of a standard requiring a very high degree of probability that the subject is at the time using the telephone to be tapped. As part of - 8 - the legislative history, we would suggest that the current practice of confirmation be cited as an example of adequate probability. Title III also includes a variety of provisions relating to foreign counterintelligence investigations. There seems to be little reason why tools such as pen register and trap and trace devices available to criminal law enforcement should not be equally available to foreign counterintelligence investigations. In addition, access to certain consumer information, under proper safeguards, should be eased. Section 303 and section 304 relating to common carriers, public accommodation facilities, vehicle rental facilities and the like seem to be sensible and constructive expansions of foreign counterintelligence authority. Much has been made of section 312's provision for military assistance with respect to offenses involving weapons of mass destruction. The controversy is largely baseless, inasmuch as the assistance provided is of a purely technical and logistical nature in circumstances where the absence of such assistance could be catastrophic. To wall off technical expertise possessed by one arm of the United States government from its employment in a law enforcement context by another branch of the United States government seems perverse, particularly where the results of such compartmentalization could be so dire. - 10 - III. Immigration Law Improvements (Title VI) Title VI creates procedures for dealing with alien terrorists under the immigration laws. Section 601 establishes special removal procedures for alien terrorists. The provision is an eminently sensible effort to deal with the problem of the need of the federal government both to avail itself of sensitive classified information in connection with alien terrorist removal procedures and to avoid disclosing such information where that would pose a risk to the national security of the United States. The proposal utilizes a special court similar to that recognized in the Foreign Intelligence Surveillance Act context, and entrusts a specially appointed federal district judge with the authority to police the process and make the ultimate decision as to removal. Section 601 likewise provides for representation by counsel, who may introduce evidence, examine witnesses, and procure the attendance at the hearing of witnesses or the production of documents. Classified information can be used, either in connection with the application for the special removal hearing or in connection with the substantive removal decision itself. Section 601 in these circumstances establishes special procedures to be employed to safeguard especially sensitive classified information. Such information is to be presented to the court ex parte and in camera. In connection with the actual hearing, written summaries of such classified information that do not pose a risk to national - 11 - security are to be made. If no such summary is possible without revealing enough to cause serious and irreparable harm to the national security or death or serious bodily injury to any person, the judge can permit the special removal hearing to continue and can consider the classified information in camera and ex parte even though it is not supplied to the alien. H.R. 1710 improves on earlier versions in cases involving lawful permanent aliens with a provision in section 506(c) establishing special procedures for access to classified information and challenges to the use of such information by special attorneys with security clearances retained precisely for such purposes. I suggest that a useful addition to the procedure for removal proceedings in other cases would be to establish a similar guardian ad litem feature, pursuant to which a government lawyer, separated from the hearing staff, would be statutorily assigned the responsibility of assessing the items of confidential information, helping the court to test their sufficiency, and making appropriate arguments on behalf of the alien. Sections 611, 612 and 613 that provide for special treatment of alien terrorists are also commendable. In general, the law should protect the United States from having to open its borders to those who are members of terrorist organizations that threaten the national security of the United States. * * * - 12 - The Comprehensive Anti terrorism Act of 1995 is a measured step to provide the federal government, and in particular the investigative and law enforcement agencies, with adequate tools to deal with terrorist conduct. The provisions are not excessive; they particularly do not deserve the hysterical reaction of some critics that see in them the destruction of civil liberties. In fact, the bill is carefully designed to protect civil liberties as a substantive matter. Internal departmental regulation and congressional oversight can ensure that our society is served by effective law enforcement and by the protection of vital civil liberties. - 13 -