December 6, 1995 Honorable Newt Gingrich Speaker House of Representatives 2428 Rayburn House Office Building Washington, D.C. 20515 Honorable Richard A. Gephardt Minority Leader House of Representatives 1226 Longworth House Office Building Washington, D.C. 20515-2503 Subject: Expansion of Federal Law Enforcement Authority Pending Counter-Terrorism Legislation Dear Speaker Gingrich and Minority Leader Gephardt: We represent a diverse group of organizations. We are united, however, in our profound objections to a number of provisions of the Comprehensive Antiterrorism Act of 1995 (H.R. 1710) that would work a substantial expansion of federal law enforcement powers. We are also deeply concerned about similar provisions in other pending counter-terrorism bills and proposals, including the Omnibus Counter-Terrorism Act of 1995 (H.R. 896) and the Antiterrorism Amendments Act of 1995 (H.R. 1635), introduced at the request of the Clinton Administration, and any bill with comparable provisions, including the Senate's "Comprehensive Terrorism Prevention Act of 1995" (S. 735). Our comments also apply to any comparable provisions under discussion for the proposed substitute for H.R. 1710. Concerns and Necessary Changes We set forth below a description of the provisions to which we strongly object in any counter-terrorism measure because they violate civil liberties and raise other constitutional concerns. We strongly believe that Congress, in conjunction with the consideration of any counter-terrorism bill, should adopt the reforms and accountability mechanisms many of us have previously outlined to the Congress regarding federal law enforcement. To do otherwise invites the potential for even more abuses than those to which our groups have objected before. We also note that many of us strongly object to other provisions of the anti-terrorism proposals not mentioned here. I Depriving People of Liberty Based on Secret Evidence Whether in a criminal proceeding or in a deportation proceeding, people have the right to see the evidence against them offered by the government. This right to confront evidence is a necessary safeguard and a fundamental prerequisite to a fair proceeding. It is what the Constitution requires. To convict or deport individuals based on evidence kept secret from them because it is "classified" deprives them of a liberty interest in violation of their most basic due process rights. We are concerned that allowing classified information to be used to deport individuals will be a stepping-stone to a corresponding exception in the criminal code based on "national security" concerns. It would not be the first time that a provision of the immigration code was borrowed for use in a bill that would amend the criminal code: the definition of "domestic terrorism" in the Judiciary Committee's version of this very bill, the Comprehensive Antiterrorism Act of 1995, was borrowed directly from the Immigration and Nationality Act. In any counter-terrorism proposal, there should be no proceeding allowing the use of secret evidence. The nation has survived for 200 years without requiring secret evidence in criminal trials or deportation proceedings. If legislation is needed, procedures improving upon protections in the Classified Information Procedures Act (CIPA) could be adopted to deal with classified information in a deportation case. Only evidence given to the individuale.g., the summary of the classified information should be the basis of any deportation order. Such a summary, as even in CIPA, would identify the person offering the information so that the person can be cross-examined. II. Designating Disfavored Groups "Terrorist" Organizations The Comprehensive Antiterrorism Act of 1995 gives the Executive Branch the power to label foreign organizations as "terrorist" groups. This provision in pending legislation should be deleted. If necessary, Congress could instead consider expanding the list of criminal activity for which 18 U.S.C. section 2339A makes it a crime to provide material support, but only to the extent consistent with the principles we have outlined. Likewise, the statutory bar on FBI investigations of protected First Amendment activity, and investigation of people or groups absent evidence that they have or will engage in the violation of federal criminal law, should be retained. The attachment of the label "terrorist" to a group would make it a crime to support the legal, often charitable, activities of the group. In fact, even the provision of goods that do not have a "dual purpose" (other than medicine and religious materials)such as giving children's clothing to an orphanage operated by a designated groupwould be deemed illegal. It is a fundamental, well- established law that people in the United States have a First Amendment right to support the legal activities of any group they choose to support. Under current law, it is already a crime to provide material support for certain illegal activity associated with terrorism. 18 U.S.C. section 2339A. Additionally, because this proposed provision does not define the term "foreign," the Executive Branch might assert the power to designate as "terrorist" organizations groups based abroad that have branches in the United States and have as members a substantial number of American citizens. Provisions for judicial review in pending legislation do not adequately prevent abuse because secret evidence could provide the basis of the designation and because courts traditionally defer to Executive Branch determinations in this area. A decision to bar a person from the United States should not be based on their associations with others. Absent some other compelling circumstances, mere membership in a group, including groups labeled "terrorist," should not be a bar for admission to the United States. Instead, such a decision should be based on whether the person knowingly engaged in prohibited activities. The only exception to this rule is when a group comes together for the sole purpose of engaging in criminal activity and is small enough and focused enough that membership denotes knowing participation in the criminal enterprise. Otherwise, people who do not support the illegal or violent activities of the group would be barred. This amounts to guilt by association which is an anathema to American values. III. Privacy and Investigations Without Evidence of Criminality We reject the proposition that law enforcement can investigate people in the United States and compel disclosure of private informationabsent a reasonable indication of criminal activity. The Fourth Amendment requirement of probable cause of a crime is a bedrock principle of the American system of justice. Unless the government can demonstrate that it has a criminal predicate evidenced by a court order or a grand jury subpoenathe government should not be given access to sensitive or private information about individuals even if that information is maintained by third parties. Provisions which would require disclosure of travel, credit and phone records in counter-intelligence investigations should be deleted from the pending legislation. IV. Wiretapping and The Exclusionary Rule Wiretapping is an extremely invasive investigatory technique. Congress included safeguards in the present statutory scheme for law enforcement wiretaps that, however inadequate, include specific requirements, explicit oversight, and checks and balances to reduce violation of privacy and Fourth Amendment rights that necessarily attend to law enforcement wiretaps. See, 18 U.S.C. sections 2510-2522. Wiretapping provisions in the various proposed antiterrorism acts signal a disturbing retreat from this protection, especially in light of the fact that too many innocent conversations are already picked up in law enforcement wiretaps. Therefore, provisions that would expand law enforcement wiretapping powers and courtroom use of conversations illegally intercepted in a wiretap should be struck from any proposed bill. Digital telephony funding should not be considered within the context of the counter-terrorism bill. V. Posse Comitatus Act As a general rule, the military should not be further involved in civilian law enforcement. The bill should contain no expansion of military involvement in civilian law enforcement. Some have suggested there may be true emergency situations involving chemical and biological weapons of mass destruction when carefully limited technical and logistical assistance for enforcement is required, and may be permissible under the following criteria: (i) military assistance is critically necessary; (ii) it is required immediately; (iii) the assistance is sought to prevent an immediate potential catastrophe; (iv) civilian law enforcement is not capable of preventing the catastrophe; (v) the assistance is lirnited to true technical and logistical support; (vi) the assistance is provided subject to the direction and supervision of civilian law enforcement; (vii) the assistance does not include military intelligence activities directed at civilians, or the authority to investigate or arrest; and (viii)the assistance is provided for a definite, short time period subject to re-certification of critical need. Any proposed exception to the rule that the military should not be further involved in civilian law enforcement must at least meet the standards set forth above. None of the pending legislation meets these criteria. VI. New Definition of Domestic Terrorism Some anti-terrorism measures so broadly define domestic terrorism as to be an unacceptable expansion of federal law enforcement authority. Under one proposal, the following unlawful acts would become "terrorism" under federal law: any crime of passion involving a gun; cutting the brake cable of a parked bicycle with intent to injure the rider or "hijacking" the bicycle; using a gun to cause "substantial darnage" to a highway sign, or even shooting at the sign and missing or merely planning with one's friends to shoot at the highway sign. Though no criminal penalties are directly attached to the definition ofterrorism, the definition has several indirect but important consequences. Conviction for federal felonies that involve "terrorism" are punished more severely under the Federal Sentencing Guidelines. Moreover, one bill would give the FBI the authority to obtain a wiretap without a prior court order to investigate the crimes that fall within the new definition. This definition of terrorism is far too broad. One of the indirect consequences of such a broad definition would be the federalization of much state criminal law, as well as increasing the amount of politically motivated selective enforcement that would inevitably occur. Rather than attempt to define "terrorism," we suggest that Congress focus on defining the activity that constitutes a "crime." No new laws may be necessary because virtually all violent activity commonly associated with terrorism is already a crime. CONCLUSION During the Waco and Ruby Ridge hearings, we saw the problems that have arisen in how federal law enforcement is using the vast authority it already has. The American people have a right to expect the highest standards of conduct on the part of federal law enforcement officers. Most of them conduct themselves in such a manner and are worthy of our best support. For those who do not, and for agencies which overstep the boundaries of responsible enforcement, there need to be means of independent redress of such misconduct that will come swiftly and equitably, and with a degree of certainty to restore public respect for and trust in those agencies and their programs. We urge members of Congress to heed the objections we have raised to the pending anti-terrorism legislation. These provisions would work an unwarranted expansion of federal law enforcement powers. The bills as presently proposed fail to ensure that individual liberty and privacy interests are not violated. No counter-terrorism bill should be passed unless it addresses the concerns we have raised here. Sincerely, Laura W. Murphy, Director Washington National Office American Civil Liberties Union Tanya Metaksa, Executive Director National Rifle Association Institute for Legislative Action Malcolm Wallop, Chairman Frontiers of Freedom Edward H. Crane, President and CEO* Cato Institute* *For identification purposes only. Gerald H. Goldstein, Immediate Past President & Legislative Committee Chair National Association of Criminal Defense Lawyers John M. Snyder, Public Affairs Director Citizens Committee for the Right to Keep and Bear Arms William B. Moffitt, Treasurer National Association of Criminal Defense Lawyers Larry Pratt, Director of Government Affairs Gun Owners of America Nancy Ross, Partner Ross and Green Mark Gissiner, President International Association for Civilian Oversight of Law Enforcement James X. Dempsey, Deputy Director Center for National Security Studies Conrad Martin, Executive Director Fund for Constitutional Government Leslie J. Seymour, National Chairperson National Black Police Association Abdurahman Alamoudi, Executive Director American Muslim Council David C. Condliffe, Executive Director The Drug Policy Foundation Mark Rotenberg, Director Electronic Privacy Information Center Eric E. Sterling, President The Criminal Justice Policy Foundation Hamzi K. Moghrabi, Chairman American Arab Anti-Discrimination Committee Joseph P. Tartaro, President Second Amendment Foundation James Zogby, President Arab American Institute Evan Hendricks, Chairman US Privacy Council Simon Davies, Director General Privacy International James J. Fotis, Executive Director Law Enforcement Alliance of America, Inc. Sean McManus, President Irish National Caucus Frank Wilkinson, Executive Director Emeritus National Committee Against Repressive Legislation Davies O'Kennedy, National President Irish American Unity Conference Ned Stowe, Legislative Secretary Friends Committee on National Legislation ENCLOSURE