CONSTITUTIONALITY OF COUNTERTERRORISM MEASURES STILL DEBATED

Senate Judiciary Committee’s Constitution Subcommittee stepped up congressional review Wed. of possible constitutional implications of counterterrorism and wiretap legislation moving through both houses. Panel heard widely divergent views on ramifications of controversial Dept. Of Justice (DoJ) proposal. Supporters expressed confidence that measure, if signed into law, would withstand Supreme Court review. Critics said constitutional uncertainty from proposed revisions to wiretap law would jeopardize, rather than enhance, ability of govt. to prosecute terrorist suspects.

Full Committee ranking member Republican (Utah) said panel was “close to a consensus package that will pass the Congress with overwhelming support.” He said Committee Chmn. Leahy (D-Vt.) indicated he might mark it up Thurs. (today). Although consideration of proposal continues on fast track through House and Senate Judiciary committees, hearing showed some members still were trying to grasp details of bill. Despite support from leadership of full committee, informal meetings are to be held to further educate members on what DoJ specifically is attempting to accomplish through proposal.

Sen. Specter (R-Pa.), one of several members of full committee to speak at hearing, said was calling meeting of members Wed. (after our deadline) “to explain what the legislation is.” Specter recently had pledged support for giving law enforcement and intelligence agencies tools they needed to fight terrorism and other threats to national security. Although he also said Congress should act quickly, he warned that negative legal consequences could arise if lawmakers weren’t “careful in crafting legislation.” He pointed out that Supreme Court historically struck had down acts of Congress “for lack of a deliberative process,” possibility under current deliberations on DoJ proposal.

Specter said it was critical that DoJ come forward with “specific factual needs” on proposed changes in Foreign Intelligence Surveillance Act (FISA). He asked Assoc. Deputy U.S. Attorney Gen. David Kris to schedule private meetings immediately on why Justice believed changes in “primary purpose” provisions of FISA were required. FISA as currently written allows govt. to carry out electronic surveillance of foreign agents without prior judicial review. Unlike Title III wiretaps for criminal investigations, which require law enforcement to show probable cause to obtain court wiretap order, FISA wiretaps can be carried out secretly if foreign intelligence is primary purpose behind investigation.

DoJ initially proposed modifying FISA to require authorities to show that foreign intelligence gathering wiretap was “a” purpose of wiretap. However, Kris acknowledged that Justice had changed wording and now wanted to allow FISA wiretaps if foreign intelligence was “significant purpose” of investigation. Jerry Berman, exec. dir. of Center for Democracy & Technology, said changes revealed that Justice wasn’t confident of constitutionality of proposed primary purpose revision. He said modification still would obliterate necessary wall between intelligence and law enforcement: “That wall does not have to come down.”

Subcommittee Chmn. Feingold (D-Wis.) said Congress “can’t depend on the U.S. Supreme Court” to guarantee that civil liberties won’t be sacrifices in name of fighting terrorism: “There is no doubt that if we lived in a police state, it would be easier to catch terrorists… But that wouldn’t be a country in which we would want to live, and it wouldn’t be a country for which we could, in good conscience, ask our young people to fight and die.” Sen. Sessions (R-Ala.) said he agreed nothing in bill would be rejected by Supreme Court: “Progress, liberty, health, wealth are the function of orderly governments, or else they don’t succeed.” Sen. Durbin (-Ill.) agreed first duty of govt. was to protect nation, but acknowledged that in times of crisis it often had overreacted: “In the midst of a national crisis, people want their security first.”

Attorney Morton Halperin said that under President Ford, Congress learned that intelligence agencies were abusing their power. “The Justice Department seems to have forgotten” that that was why FISA would be used strictly for national security foreign intelligence gathering and Title III would be used for criminal investigations, he said: “It is essential to preserve this compromise… because the government needs to be held to the notion that if it’s seeking evidence to indict someone, it must adhere to the procedures under Title III.” He agreed that intelligence and law enforcement must share information, but only if it involved terrorism. Yeshiva U. Law Prof. John McGinnis said “national security context has fundamentally changed” since attacks, and criticism of bill had been unfair. If Congress decided “not to expand FISA… [it] would mean that some national security collections would not be addressed… some have very important beneficial justifications for use in criminal investigations.”

House Panel Amends Wiretap Bill to Avoid Burdens for Industry

Meanwhile, House Judiciary Committee continued debating counterterrorism and wiretap legislation past our Wed. deadline as flurry of proposed amendments began to pour in late in day. Committee staffer said at least 50 amendments were expected that would cover entire range of provisions in compromise version of DoJ proposal. Committee quickly passed by voice vote amendment by Reps. Boucher (D-Va.), Goodlatte (R-Va.) and Cannon (R-Ill.) to guarantee nothing in bill would impose mandates on communications service providers to modify “equipment, services or features.” Boucher said DoJ hadn’t intended to place such burden on industry and amendment reflected that intention.

Goodlatte expressed concern that bill would enable law enforcement to unlawfully obtain communications content via pen register or trap-&-trace devices. Committee Chmn. Sensenbrenner (R-Wis.) agreed and said he would make that concern clear in related committee report sent to House floor to “make sure there’s not an expansive definition of content.”

Sensenbrenner made it clear he intended to mark up bill before night was over. He said it contains some of provisions recommended by DoJ, such as applying pen register and trap-&- trace wiretap capabilities “to new technologies such as the Internet.” It also would amend FISA, which governs wiretaps and investigations to enable law enforcement to carry out multipoint electronic surveillance, known as roving wiretaps. Although that capability is possible under Title III for court-authorized wiretaps in criminal investigations, law doesn’t permit it under FISA. Sensenbrenner said “the bill represents the essence of compromise. It will neither satisfy those on the left or the right, and doesn’t provide the DoJ with its wish list… but it will provide the tools necessary to fight terrorism.”

Ranking Democrat Conyers (Mich.) lauded Sensenbrenner for slowing movement of bill. Attorney Gen. John Ashcroft, who began circulating counterterrorism proposal following Sept. 11 terrorist attacks, had pushed to move bill immediately to House and Senate floors and had expected approval by end of first week. Conyers said “it would be irresponsible to give him a blank check.”

Conyers said that although he supported enhancement of law enforcement’s wiretapping authority, he didn’t dismiss possibility new powers had potential for abuse. Although compromise bill would bolster law enforcement’s electronic surveillance tools, he said that “with these new powers come accountability.” Conyers said bill would create new office to investigate alleged civil liberties abuses stemming from powers that would be granted under legislation: “Is it a perfect bill? Of course not. But it does represent a marked improvement over the Administration’s proposal. Among other things, I am still hoping we can tighten the bill to safeguard Americans from being subject to CIA snooping.”

Rep. Waters (D-Cal.) said bill “would allow the government to engage in forum shopping” through its nationwide wiretap provision. She decried measure because it would enable investigators to “get a warrant any place.” Rather than allow for such wiretaps “without geographic limitations,” she offered amendment that would allow such wiretaps “in any district in which significant activities related to the terrorism may have occurred.” Sensenbrenner immediately opposed Waters amendment, saying current law created delays in terrorist investigations. Waters measure would “allow evidence to slip through the fingers of law enforcement,” he said. After further debate, Sensenbrenner temporarily withdrew amendment to allow members to review what section of bill would be changed.

Industry sources have said cable and Internet interests were negotiating with committee leaders to insert language (see separate story) for liability protection for cable providers complying with court orders to disclose subscriber information. House Commerce Committee on Wed. cleared related legislation.