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[Senate Hearing 107-610]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 107-610
 
      PROTECTING CONSTITUTIONAL FREEDOMS IN THE FACE OF TERRORISM

=======================================================================

                                HEARING

                               before the

   SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 3, 2001

                               __________

                          Serial No. J-107-41

                               __________

         Printed for the use of the Committee on the Judiciary
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

   Subcommittee on the Constitution, Federalism, and Property Rights

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont            STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          MITCH McCONNELL, Kentucky
                 Robert Schiff, Majority Chief Counsel
                 Garry Malphrus, Minority Chief Counsel

                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington    68
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     8
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     3
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    75
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    14
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    63
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................    80

                               WITNESSES

Berman, Jerry, Executive Director, Center for Democracy and 
  Technology, Washington, D.C....................................    26
Cole, David, Professor of Law, Georgetown University Law Center, 
  Washington, D.C................................................    43
Halperin, Morton H., Chair, Advisory Board, Center for National 
  Security Studies, and Senior Fellow, Council on Foreign 
  Relations, Washington, D.C.....................................    17
Kmiec, Douglas W., Dean and St. Thomas More Professor of Law, 
  Columbus School of Law, Catholic University of America, 
  Washington, D.C................................................    35
Kris, David S., Associate Deputy Attorney General, Department of 
  Justice, Washington, D.C.......................................     9
McGinnis, John O., Professor of Law, Benjamin N. Cardozo School 
  of Law, Yeshiva University, New York, New York.................    21
Norquist, Grover, President, Americans for Tax Reform, 
  Washington, D.C................................................    10

                               QUESTIONS

Questions submitted by Senator Sessions for David Kris...........    67

                       SUBMISSIONS FOR THE RECORD

Department of Justice, Office of Legislative Affairs, Daniel J. 
  Bryant, Assistant Attorney General, Washington, D.C., letter...    82
Federal Law Enforcement Officers Association, Richard J. Gallo, 
  President, Washington, D.C., letter............................    70
Fraternal Order of Police, Steve Young, President, Washington, 
  D.C., letter...................................................    70
German American Education Fund, Elsbeth M. Seewald, Chairman, 
  Pleasant Prairie, Wisconsin, letter and attachment.............    71
Jacobs, Arthur D., Major, USAF Retired, Tempe, Arizona, letter 
  and attachment.................................................    73
Meese, Edwin, III, Washington, D.C., letter......................    77
National District Attorneys Association, Kevin P. Meenan, 
  President, letter..............................................    77
Southeastern Legal Foundation, Inc., Phil Kent, President, 
  Atlanta, Georgia, statement....................................    78
Thornburgh, Dick, Washington, D.C., letter.......................    80

      PROTECTING CONSTITUTIONAL FREEDOMS IN THE FACE OF TERRORISM

                              ----------                              

                       WEDNESDAY, OCTOBER 3, 2001

                              United States Senate,
Subcommittee on the Constitution, Federalism, and Property 
                        Rights, Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 9:34 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Durbin, Hatch, Specter, and 
Sessions.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Chairman Feingold. I will call the Subcommittee to order, 
and I would like to welcome all of you to this hearing of the 
Subcommittee on the Constitution on ``Protecting Constitutional 
Freedoms in the Face of Terrorism.'' We have a very 
distinguished panel of witnesses here this morning and I very 
much appreciate your willingness to speak with us, especially 
on such short notice.
    Almost as soon as the attacks on September 11 ended, public 
discussion turned to two issues: how the United States will 
respond to these terrorist attacks, and how we can protect 
ourselves against future attacks. And almost immediately, 
discussion of that second issue raised the question of how our 
efforts to prevent terrorism will affect the civil liberties 
enjoyed by all Americans as a part of our constitutional 
birthright.
    I was greatly encouraged by the words of Senator George 
Allen, who represents one of the States struck by terrorism, on 
the day after the attacks. He said on that day, ``We must make 
sure that as we learn the facts, we do not allow these attacks 
to succeed in tempting us in any way to diminish what makes us 
a great Nation. And what makes us a great Nation is that this 
is a country that understands that people have God-given rights 
and liberties. And we cannot, in our efforts to bring justice, 
diminish those liberties.''
    I agree with Senator Allen, and I believe that one of the 
most important duties of this Congress in responding to the 
terrible events of September 11 is to protect civil liberties 
which derive, of course, from our Constitution. Now, that is 
not to say that we cannot enact more measures to strengthen law 
enforcement. There are many things that we can do to assist the 
Department of Justice in its mission to catch those who helped 
the terrorists and prevent future attacks. We can, and we will, 
give the FBI new and better tools, but we must also make sure 
that the new tools don't become instruments of abuse.
    There is no doubt that if we lived in a police state, it 
would be easier to catch terrorists. If we lived in a country 
where the police were allowed to search your home at any time 
for any reason, if we lived in a country where the government 
is entitled to open your mail and eavesdrop on your phone 
conversations or intercept your e-mail communications, if we 
lived in a country where people could be held in jail 
indefinitely based on what they write or think or based on a 
mere suspicion that they are up to no good, the Government 
would probably discover and arrest more terrorists or would-be 
terrorists, just as it would find more lawbreakers generally.
    But I think we can all agree that 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. In short, that country wouldn't be 
America.
    In a recent L.A. Times article, Professor Erwin 
Chemerinsky, a distinguished law professor at the University of 
Southern California, put the challenge before us squarely: 
``Some loss of freedom may be necessary to ensure security, but 
not every sacrifice of liberty is warranted. For example, 
people accept more thorough searches at airports even though it 
means a loss of privacy, but strip searches and body cavity 
searches would clearly be unacceptable. The central question 
must be what rights need to be sacrificed, under what 
circumstances, and for what gain.''
    I think it is important to remember that the Constitution 
was written in 1789 by men who had recently won the 
Revolutionary War. They did not live in comfortable and easy 
times of hypothetical enemies. They wrote the Constitution and 
the Bill of Rights to protect individual liberties in times of 
war as well as times of peace.
    There have been periods in our Nation's history when civil 
liberties have taken a back seat to what appeared at the time 
to be the legitimate exigencies of war. Our national 
consciousness still bears the stain and the scars of those 
events: the Alien and Sedition Acts, the suspension of habeas 
corpus during the Civil War, the internment of Japanese 
Americans during World War II and the injustices perpetrated 
against German Americans and Italian Americans, the black-
listing of supposed communist sympathizers during the McCarthy 
era, and the surveillance and harassment of anti-war 
protesters, including Dr. Martin Luther King, Jr., during the 
Vietnam War.
    We must not allow this piece of our past to become 
prologue. Preserving our freedom is the reason we are now 
engaged in this new war on terrorism. We will lose that war 
without a shot being fired if we sacrifice the liberties of the 
American people in the belief that by doing so we will stop the 
terrorists.
    That is why this exercise of considering the 
administration's proposed legislation and fine-tuning it to 
minimize the infringement of civil liberties is so crucial. And 
this is a job that only the Congress can do. We cannot simply 
rely on the Supreme Court to protect us from laws that 
sacrifice our freedoms. We took an oath to support and defend 
the Constitution of the United States, and I hope that our 
witnesses today will assist us in our duty to be true to that 
oath.
    Now, I would like to call on Senator Hatch, the ranking 
member of the full committee, after which Senator Sessions, who 
is going to represent the subcommittee ranking member, Senator 
Thurmond, today, will make brief remarks as well.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman.
    We are happy to welcome all you witnesses here today. This 
is an important hearing and I will be very interested in what 
you all have to say. I can only stay for a short period, but I 
will read every statement and pay attention to them.
    I am very pleased that the Chairman, Chairman Leahy, and I 
and others are working very closely with the Justice Department 
and with the White House to try and come up with 
constitutionally sound approaches here that will help protect 
our country. I think we are very close to agreement.
    I think if we can bring this agreement about, it will be 
one that most everybody who is reasonable should support and 
will be in the best interests of the country and the best 
interests of the protection of our citizens, something that I 
have been arguing needs to have been done long before this 
particular time and before September 11.
    Mr. Chairman, as you know, we have collectively committed 
to a war unlike any war in the history of this country. It is 
different because a substantial part of this war must be fought 
on our own soil, and this is not a circumstance of our own 
choosing. The enemy has brought this war to us, but we must not 
flinch from acknowledging the fact that because this is a 
different kind of a war, it is a war that will require 
different kinds of weapons and different kinds of tactics.
    Mr. Chairman, let me also thank you for holding this 
hearing to educate the public and the committee on the 
importance of our constitutional rights.
    The Attorney General has communicated to us and in no 
uncertain terms has told us that he does not currently have all 
of the tools necessary to fight this war. Over the last several 
weeks, I and several members of this committee, as I have said, 
have undertaken a microscopic review of the anti-terrorism 
proposal submitted by the administration. We have engaged in 
round-the-clock negotiations over the final shape of this 
legislation. Everyone concerned is extremely concerned about 
the constitutional aspects and the constitutional 
considerations that are essential to making this legislation 
what it should be.
    During the course of this review, I have become quite 
familiar with the details of this proposal, as you can imagine. 
I would like to congratulate the Attorney General and the 
Department of Justice for moving responsibly on this matter, 
for working responsibly with us and taking care to request only 
those reforms that fit well within the bounds of the 
Constitution.
    Although the proposal has been the subject of intense 
scrutiny over the last couple of weeks, a significant amount of 
the objections to the proposal have been on matters of policy, 
not on matters of constitutional concern. As the White House 
and the Attorney General have recognized, by submitting such a 
restrained proposal, we must not repeal or impinge upon our 
cherished constitutional liberties. To do so would only bring 
us closer to the joyless society espoused by our enemy.
    The administration's proposal properly takes these concerns 
into account, and at the same time does what people around 
America have been calling upon Congress to do; that is, to give 
our law enforcement community the tools they need to keep us 
safe in our homes, in our places of business, as we travel 
throughout our country, and as we enjoy life in this country 
that we have always taken for granted prior to September 11.
    As a result of the substantial progress that we have made 
in our scrutiny and debate over the past several weeks, I do 
believe, as I have said before, that we are close to a 
consensus package that will pass this Congress, I believe, with 
overwhelming bipartisan support, and I think in the best 
interests of the American people.
    The Attorney General has explicitly told us what tools he 
needs. I have personally reviewed his requests and found them 
to be consistent with our constitutional protections, 
especially as we fine-tune them. I hope that as we present this 
ultimate package--and I hope we can do it this week; I am 
hopeful that we can mark it up tomorrow, and I believe we can. 
There is no excuse in the world for not doing it, and I believe 
the Chairman does intend to do that, or at least that is what 
has been indicated to me. I think that is the responsible thing 
to do.
    As we mark it up, I hope that the American people will see 
the wisdom of this, will see the importance of it, will see how 
we will have better tools to interdict and stop terrorist acts 
like we have seen, and do so in ways that are constitutionally-
sound without violating constitutional principles or civil 
liberties.
    I am just grateful to you, Mr. Chairman. I appreciate you 
holding this hearing, and I am grateful for the work that 
Senator Sessions does on this committee and on this 
subcommittee.
    Chairman Feingold. I thank you, Senator Hatch. I thank you 
for your statement and for all your hard work to try to come to 
an agreement on this, and also for complimenting us on having 
this hearing. The fact is that the hearing with the Attorney 
General was interrupted before many of us could ask questions. 
There has been no testimony before this committee by experts on 
civil liberties at this point, and we are hoping that this 
hearing can help us before this matter goes through and we can 
explore some of the items that were originally proposed, as 
well as some of the compromises that have been suggested.
    Senator Sessions?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. This is a 
worthwhile hearing and I appreciate your calling it. I thank 
Senator Hatch for his insight and leadership in these matters. 
I know there are a lot of negotiations going on, and I have 
interest in those and it will be interesting to see how it 
comes out.
    I would just say that I have gotten older and have examined 
what goes on around the world, it strikes me that progress, 
liberty, wealth and health are functions of orderly 
governments. Governments have to maintain order or else they 
don't succeed.
    I believe the reason we have so much poverty and so much 
oppression of one group by another is because government is 
unable to maintain order, and as a result economic growth and 
sophisticated science cannot flourish.
    Our Constitution begins, ``We the people of the United 
States, in order to form a perfect Union, establish justice, 
ensure domestic tranquility, provide for the common defense, 
promote the general welfare and secure the blessings of liberty 
for ourselves and our posterity, do ordain and establish this 
Constitution.'' It provides great protections for us, and I 
don't believe there is anything in the administration's bill 
that the Supreme Court would conclude violates the Constitution 
of the United States.
    We know that in war time we have historically done that in 
great degree. Chief Rehnquist once again has written a book 
that is very timely, All Laws But One, in which he talks about 
the diminishment of constitutional protections in war time, and 
delineates a host of them that we have done in this century, 
big-time diminutions of freedom. But I don't see that in this 
bill, so I would be glad to hear these experts tell me 
precisely what is in the legislation they think would violate 
current standards of constitutional thought and our great 
beliefs in freedom.
    As Senator Hatch noted, we are dealing with people who are 
capable of killing us in large numbers, innocent civilians, 
creating disorder and economic disruption in ways that we have 
never seen before. So I think if we are smart, if we work at it 
right, we can utilize our great historical principles to give 
some tools that law enforcement needs that can protect us 
without undermining the Constitution.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Sessions follows.]

   Statement of Hon. Jeff Sessions, a U.S. Senator from the State of 
                                Alabama

    Today we address whether the Adminnistration's Anti-Terrorism 
legislation violates the constitutional freedoms of our people during 
this War on Terrorism. This is an important issue, and I commend 
Chairman Feingold for holding this hearing.
    My review of this legislation leads me to conclude that it does not 
violate the Constitution. Indeed, no serious commentator has 
established that it does. And four former Attorneys General have 
expressed their support for the bill, stating ``We believe that the 
proposals are consistent with the Constitution and would not unduly 
interfere in the liberties we as Americans cherish. Letters from 
Griffin Bell, Dick Thornburgh, Edwin Meese III, and William Barr, 
Attorney General, to Chairman Leahy and Senator Hatch, Senate Judiciary 
Committee (Oct. 2, 1001).
    Placed in context, this legislation is a modest and measured 
response to the ruthless acts of war that only a few weeks ago cost us 
the lives of more than 5,000 people and threatens to take many more. To 
frame the context for assessing the legislation's impact on our 
constitutional liberties, we must begin with the Constitution and its 
history.
                            The Constitution
    While it is presently fashionable to speak only in terms of 
``rights,'' the Declaration of Independence and the Constitution speak 
also in terms of governmental power--the power to secure these rights. 
The Declaration of Independence states:

        ``We hold these Truths to be selfevident, that all Men are 
        created equal, that they are endowed by their Creator with 
        certain unalienable Rights, that among these are Life, Liberty, 
        and the Pursuit of Happiness--That to secure these Rights, 
        Governments are instituted among Men. . . .'' The Declaration 
        of Independence para. 2 (1776) (emphasis added).

    The preamble to our Constitution states:

        ``We the People of the United States, in--Order to form a more 
        perfect Union, establish Justice, insure domestic Tranquility, 
        provide for the common defence, promote the general Welfare, 
        and secure the Blessings of Liberty to ourselves and our 
        Posterity.'' U.S. Const. preamble (emphases added).

    Thus, the Framers knew that liberty would not be secure without 
domestic tranquility and without a strong defense against foreign 
enemies. If the Government does not maintain order, then the weakest 
and most disadvantaged in society are the first to suffer the loss of 
liberty and the last to recover it. As the great liberal judge Learned 
Hand stated, ``A society in which men recognize no check upon their 
freedom soon becomes a society where freedom is the possession of only 
a savage few. . . .'' Learned Hand, The Spirit of Liberty 191 (New 
York: Alfred A. Knopf 1952).
    In the FEDERALIST PAPERS, James Madison assessed the balance 
between the Government's power to prevent stronger individuals from 
infringing on weaker individuals' rights and the Government's tendency 
to impinge on those rights itself as follows:

        ``In framing a government which is to be administered by men 
        over men, the great difficulty lies in this: you must first 
        enable the government to control the governed; and in the next 
        place oblige it to control itself.'' The Federalist No. 51, at 
        322 (James Madison) (Clinton Rossiter ed., 1961).

    It is clear that the Framers did not want to repeat the error of 
the Articles of Confederation that produced a Government too weak to 
survive longterm internal and external threats and almost too weak to 
survive a war.
                           Historical Context
    There is ample history of governments trying to win wars and 
curtailing civil liberties in their efforts. In his 1998 book, All The 
Laws But One, Chief Justice Rehnquist states:

    ``In any civilized society the most important task is achieving a 
proper balance between freedom and order. In wartime, reason and 
history both suggest that this balance shifts to some degree in favor 
of order--in favor of the government's ability to deal with conditions 
that threaten the national well-being.'' William H. Rehnquist, All The 
Laws But One 222 (1998).
    Rehnquist recounts that at different times during the Civil War, 
World War I, or World War II, the federal government suspended the writ 
of habeas corpus, tried civilian citizens in military commissions 
without a jury, interned people based on their race without 
individualized determinations that they were threats to national 
security, and suppressed anti-war speech and press articles. William H. 
Rehnquist, All The Laws But One 25, 34, 174-75, 214-15 (1998).
    I would add that during the Korean War, the federal government 
seized privately-owned, lawful, and legitimate steel mills that were 
not connected with criminal activity. See Youngstown Sheet & Tube Co. 
v. Sawyer, 343 U.S. 579 (1952) (holding that President Truman could not 
seize the nation's steel mills during the Korean War).
                       The Administration's Bill
    Placed in context, it is clear that the constitutional effects of 
the Bush Administration's Anti-Terrorism Bill are mild by historical 
standards. The Bill does not suspend the writ of habeas Corpus. Compare 
Ex parte Merryman, 17 Fed. Cas. 144 (1861) (recounting President 
Lincoln's suspension of the writ of habeas corpus for a Confederate 
sympathizer in Maryland at the outbreak of the Civil War). The Bill 
does not require citizens to be tried by military commissions without a 
jury. Compare Ex parte Milligan, 71 U.S. 2 (1866) (recounting the 
Lincoln Administration's trial of civilians for conspiring to conduct 
an armed pro-Confederate uprising in Indiana). The Bill does not 
authorize the internment of citizens based on their race without 
individualized determinations that they are a threat to national 
security. Compare Korematsu v. United States, 323 U.S. 214 (1944) 
(recounting the internment of Japanese aliens and citizens who lived on 
the West Coast based on their race, not on any individualized evidence 
of a threat to national security). The Bill does not attempt to 
suppress anti-war speech or press articles. Compare Abrams v. United 
States, 250 U.S. 616 (1919) (recounting the conviction under the 
Sedition Act of 1918 of Russian immigrants for printing pamphlets 
criticizing Allied intervention in Russia during World War I). And the 
B111 does not empower the Government to seize privately-owned, lawful 
businesses that are not connected with criminal activity. Compare 
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (recounting 
President Truman's seizure of the steel mills during the Korean War). 
Indeed, none of these great constitutional issues of American history 
concerning civil liberties in wartime are raised by this Bill.
    Nonetheless, it is important to remember that our examination of 
this Anti-Terrorism Bill is not merely a debate for academic benefit or 
a means for various special interest groups to raise money. It is a 
choice with real-life consequences.
    In my 15 years as a federal prosecutor, I saw the real impact of 
our criminal law on real victims. When there was a technical glitch in 
the law that touched on constitutional rights, it could result in a 
criminal set free, a victim left unvindicated, and justice left undone.
    When a drug kingpin is set free by an outdated or technically 
deficient law, he may endanger the lives of 2 or 3 witnesses. When 
terrorists remained at large because of outdated and technically 
deficient laws, they murdered more than 5,000 people on September 11th. 
Thus, while we must always keep in mind our cherished constitutional 
liberties and our duty to protect them, we must not lose sight of the 
real-life impact of the decisions that we in Congress make concerning 
this Bill.
    The Bill contains numerous provisions that would update our laws 
and provide our intelligence and criminal investigators the tools they 
need to keep up with well-financed, sophisticated, and ruthless 
terrorists and other criminals.
    Pen Registers--The Bill would provide for nationwide application of 
judicial orders for installing pen registers and trap and trace devices 
to record telephone numbers that come to and from a particular phone. 
In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that 
the use of pen registers by law enforcement to record outgoing numbers 
dialed from a telephone does not violate the Constitution because there 
is no reasonable expectation of privacy in numbers that are dialed out 
of a telephone. Present day criminals, including terrorists, move from 
State to State and change telephones regularly. Our law enforcement 
officers need to be able to move as fast as the terrorists.
    The Bill would also allow pen register devices to record routing 
and address information on the Internet. It is not intended to allow 
the Government to read e-mail messages without a warrant. The 
Administration is negotiating in good faith to make doubly sure that 
the content of e-mail messages is not captured by these devices and 
thus, no Fourth Amendment issue is raised.
    FISA--The Administration's Bill would amend the Foreign 
Intelligence Surveillance Act--FISA--to allow surveillance of an agent 
of a foreign power, which includes a member of an international 
terrorist group, with less than an exclusive or primary purpose of 
foreign intelligence gathering. This would allow, for example, our 
criminal investigators to assist our intelligence officers in arresting 
a criminal before he supplies a terrorist with deadly weapons. This 
ability to conduct more flexible surveillance is one of the few 
provisions of this bill that could have prevented the September 11, 
2001 attacks.
    Under the Bill, a court would still have to find probable cause 
that the target of the surveillance was an agent of a foreign power, 
including a member of an international terrorist group. Thus, the 
surveillance could not apply to an average American citizen or a run-
of-themill criminal. It would apply to terrorists who break the law.
    Immigration--Finally, I must express my regret that some of the 
immigration provisions have been eliminated from the Administration's 
Bill in the Senate. While lawful immigrants who work hard and 
contribute to our country are welcome, Congress has the broad power to 
deal with non-citizens in general and illegal aliens in particular. In 
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 491-
92 (1999), the Supreme Court held that ``when an alien's continuing 
presence in this country is in violation of the immigration laws, the 
Government does not offend the Constitution by deporting him for the 
additional reason that it believes him to be a member of an 
organization that supports terrorist activity.'' I trust that the 
Administration will keep this in mind as it fights our War on 
Terrorism.
                               Conclusion
    The Administration's Bill raises none of the great constitutional 
issues that have confronted the country in prior wars. It is a measured 
response to the worst foreign attack on American soil in our history. 
The Bill updates our laws to allow our criminal and intelligence 
officers to work together quickly to track down and stop the most 
immediate threat to our constitutional liberties--ruthless terrorists 
with no regard for law or life.

    Chairman Feingold. Thank you very much, Senator Sessions.
    Now, I would like to turn to a distinguished member of the 
committee, Senator Durbin.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Senator Feingold, thank you for this 
hearing, and I want to thank you on behalf of not only the 
committee, but the Congress, because I think it is important 
that we pause at some moments in our history and reflect on 
whether or not the decisions we are about to make will stand 
the test of time.
    I agree completely with Senator Sessions in his note that 
our first obligation is to protect and defend this great 
Nation. But in that same Preamble that he read, they made a 
point of saying it was for the purpose of securing the 
blessings of liberty. And the question in this hearing is 
whether or not anything we are doing or contemplating doing is 
going too far.
    I think that Attorney General Ashcroft and FBI Director 
Mueller and other law enforcement officials have done an 
excellent job in responding quickly to this terrible tragedy 
that has confronted our Nation. But now we are being confronted 
with the proposition of making permanent changes in law in 
America, and we have to really ask ourselves whether these 
changes will stand the test of time.
    In times of crisis, our Government has often overreacted. I 
am a very proud son of Illinois, the Land of Lincoln, and 
believe him to be one of our greatest Presidents. Yet, in 1861, 
at the height of the Civil War, he suspended the writ of habeas 
corpus for secessionists and those suspected of disloyalty. 
Congress expanded the suspension in 1863; in World War I, the 
Alien and Sedition Acts, the Espionage Acts.
    The so-called Palmer Raids, led by Attorney General 
Mitchell Palmer, included the confiscation and selling off of 
property and personal belongings of those who were deported; in 
1940, the Alien Registration Act, and then following Pearl 
Harbor, the infamous Executive Order 9066 by President 
Roosevelt that led to 120,000 Japanese Americans being 
interned.
    At the time, I am certain that these were immensely popular 
because in the midst of a national crisis, people want their 
security first. That is understandable. But we have got to make 
certain that the decisions we make in this committee are 
certainly consistent with our promise to secure the blessings 
of liberty on the people of this country. We have to give to 
law enforcement the tools necessary to fight terrorism in our 
country, and outside as well, but we hope that this can be 
achieved without compromising our basic liberties and rights.
    Senator Feingold, thank you for raising this important 
issue.
    Chairman Feingold. Thank you, Senator Durbin.
    I want to start with our distinguished panel now. I know 
that at least Mr. Norquist has a serious time problem. We are 
going to start with Mr. Kris, the Associate Deputy Attorney 
General at the Department of Justice. Mr. Kris holds degrees 
from Haverford College and Harvard School.
    I thank you for coming this morning. Before you begin, let 
me ask all of you to limit your remarks to five minutes. We 
have a large panel here and I want to make sure that the 
members of the committee have a chance to ask questions. Of 
course, your complete written statements will appear in the 
record of this hearing.
    Mr. Kris, please proceed.

STATEMENT OF DAVID S. KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL, 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Kris. Thank you, Mr. Chairman and members of the 
committee. Thank you for the opportunity to discuss the 
administration's proposed legislative response to the acts of 
terrorism inflicted on our country on September 11.
    My name is David Kris and I am an Associate Deputy Attorney 
General. My portfolio includes national security policy and 
FISA, the Foreign Intelligence Surveillance Act. I have been 
invited to provide information and to answer questions about 
how the FISA process works and how that process can be 
improved, consistent with the Constitution.
    The additional tools sought by the administration seek to 
remove impediments to the vitally important coordination 
between law enforcement and intelligence elements in the 
Government. I appreciate the opportunity to discuss and answer 
questions in that area this morning.
    The Department has sent to the Chairman and the ranking 
member of the Judiciary Committee, Senators Hatch and Leahy, a 
detailed letter from Assistant Attorney General Dan Bryant 
explaining why our proposed change to FISA's purpose 
requirement is constitutional. I understand that the committee 
has copies of that letter, and with respect to the sort of 
finer points of the constitutional analysis I will defer to the 
letter.
    I must also note that, given the very nature of FISA 
proceedings, and in particular their classified nature, I may 
not be able to answer all of your questions this morning as 
fully as you would like in an open hearing. I apologize in 
advance for that limitation. I will do my best to provide full 
and complete unclassified answers. But, of course, I am also 
happy to brief the committee or members in a closed setting if 
there are matters that I can't go into at this hearing. I 
appreciate your understanding of that constraint.
    Again, thank you for the opportunity to provide the 
committee with information it seeks on this important matter 
involving our country's fight against terrorism. Thank you.
    [The prepared statement of Mr. Kris follows:]

 State of David S. Kris, Associate Deputy Attorney General, Department 
                       of Justice, Washington, DC

    Mr. Chairman and Members of the Subcommittee:
    Thank you for the opportunity to discuss the Administration's 
proposed legislative response to the acts of terrorism inflicted on our 
country on September 11.
    My name is David Kris. I am an Associate Deputy Attorney General at 
the Department of Justice. My portfolio includes national security 
policy and FISA, the Foreign Intelligence Surveillance Act.
    I have been invited to provide information and answer questions 
about how the FISA process works and how that process can be improved 
consistent with the Constitution. The additional tools sought by the 
Administration seek to remove impediments to the vitally important 
coordination between the intelligence and law enforcement elements of 
the government. I appreciate the opportunity to discuss and answer 
questions in this area.
    The Department has prepared and sent to the Chairman and Ranking 
Member of the Judiciary Committee--Senators Leahy and Hatch--a detailed 
letter from Assistant Attorney General Dan Bryant explaining why our 
proposed change to FISA's ``purpose'' requirement is constitutional. I 
understand that you have copies of that letter. With respect to the 
finer points of the Constitutional analysis that underlies the 
Administration's proposal, I will defer to the letter.
    I must also note that, given the classified nature of FISA 
proceedings, I may not be able to answer certain of your questions in 
this open hearing. I apologize in advance for that and I will do my 
best to provide full and complete unclassified responses. However, I am 
also happy to brief you and other members of the Committee in a closed 
setting if there are matters that cannot be discussed here this 
morning. I appreciate your understanding of these constraints.
    Again, thank you for the opportunity to provide your Committee with 
the information it seeks on this important matter involving our 
country's fight against terrorism.
    Thank you.

    Chairman Feingold. I thank you.
    Our next witness will be Grover Norquist. Mr. Norquist is 
the President of Americans for Tax Reform, a coalition of 
taxpayer groups, individuals and businesses opposed to higher 
taxes at the Federal and State levels. He holds both a B.A. and 
an M.B.A. from Harvard University.
    I thank you for appearing today.

  STATEMENT OF GROVER NORQUIST, PRESIDENT, AMERICANS FOR TAX 
                    REFORM, WASHINGTON, D.C.

    Mr. Norquist. Thank you very much. In addition to serving 
as President of Americans for Tax Reform, I, along with quite a 
number of conservative groups, have joined the In Defense of 
Freedom coalition. The list of ten statements of principle is 
included in my testimony.
    I will speak for myself, but I would note that David Keane, 
of the American Conservative Union, has raised similar 
questions, and Paul Weyrich, of the Free Congress Foundation; 
Phyllis Schlafly, of the Eagle Forum, are all very concerned 
about this legislation, the particulars of it.
    The most important two things, I would suggest, is I have 
sent a letter to every member of the House and Senate and asked 
them to please promise to read it before they vote for it. I 
did get one response asking if I was kidding, and I am not 
kidding. I mean that very seriously. There is a very real fear 
on the part of center-right groups and civic groups in the 
country that we will be rushing into passing something without 
looking at it sufficiently.
    There are voices from the Justice Department demanding that 
you hurry up and pass it before they showed it to you. The 
reason people ask you to vote for something right away is they 
think if you read it, you might not. So I think that was 
troubling.
    The other thing that I am pleased at is we have had a very 
civil national discussion on this. I am concerned the House has 
labeled their bill the PATRIOT bill. Those of us who may find 
ourselves in opposition to it have to wonder where that leaves 
us. I do think it is important that we have, to date, had a 
very civil discussion and people have been able to raise 
questions without having their intentions questioned.
    I would suggest five principles that you look at when you 
are analyzing the bill. The first is, since this is being 
passed in the wake of September 11, I do think it is incumbent 
on people trying to pass any particular piece of this to 
explain whether this would have had anything to do with 
preventing September 11.
    Second, if there are new powers that we have to have to 
fight terrorism, then let us limit that to fighting terrorism. 
In the past, this body and the House passed the RICO bill, 
which is supposed to fight organized crime and is used to 
attack pro-life activists. The asset forfeiture provisions that 
were supposed to be used to fight the drug war have been taking 
people's property all over the country.
    You can pass something in response to a particular problem 
and then 5, 10, 20 years later it is used for Lord knows what. 
So if it really is necessary to fight terrorism, let's put it 
in that that is what it is for and not usable for other things.
    They sold us this stuff; we have to have this to fight the 
drug war, we have to have this to fight organized crime. And 
now they are telling us, well, of course, those are now the 
floors of the Government's power and the Government should have 
those kinds of power for all sorts of other things, not just 
the specific, targeted reasons that they originally sold to us.
    Third: Consider sunsetting the entire package and consider 
sunsetting provisions. I realize that that is weak. When you 
pass something for three years, they tend to get put off, but 
better sunsetted than not sunsetted so we could at least 
revisit these things that we are passing in some haste in the 
wake of September 11.
    Fourth: While you are doing this, considering reforming the 
institutions that manage these things. I think one of the 
reasons people are willing to look at the Defense Department's 
request for more money is that the Secretary of Defense has 
been out there saying we ought to have base closings, we ought 
to stop doing some of the expensive things we used to do and 
spend money on new stuff.
    I am very open to a discussion from the Secretary of 
Defense about new ways to spend money and do things in the 
Defense Department because he is so serious about dropping old 
things. Well, I would be interested in knowing, if we are 
passing new laws, what old laws didn't work. What are we 
looking at undoing, what are we looking at reforming?
    Obviously, something went wrong here, and the folks at the 
FBI and the CIA, I hope, are spending some time, if not in 
public at least with you privately, talking about where things 
went wrong. If somebody comes and asks for more money and more 
power, I kind of want to know what they were doing previously 
and why they need more money and more power.
    If the laws have been flawed in the past, are they only 
flawed in one direction? They were flawed because they didn't 
give the Government enough power, or are they equally flawed in 
giving the Government too much power in some areas? I hope we 
can even-handedly look at that.
    I raise some specifics in my testimony, and I speak on 
those specifics on behalf of the Eagle Forum and Free Congress 
Foundation, as well, because I was able to talk to them. But I 
am concerned specifically in the House version of this, which 
is an improvement over the administration's, but necessarily 
everything one would want in protecting civil liberties, that 
the use of wiretap information from foreign governments is 
still too promiscuously used.
    Deleting the requirement from the Foreign Intelligence 
Surveillance Act for formal pleading to a court of law strikes 
me as dangerous. The asset forfeiture questions I still think 
are too broad. There has been some discussion about going back 
to the ``know your customer'' legislation of invading people's 
privacy through banks, and so on. Each of these, I think, are 
problematic.
    Senator Hatch mentioned that he didn't see anything in here 
that violated the Constitution. I know that some Senators have 
trouble reading the Second Amendment and some trouble finding 
the Fourth and Fifth Amendments. But the Ninth Amendment is 
also in there and I would ask people to keep an eye on that 
when they talk about something not being a violation of the 
Constitution.
    Thank you.
    [The prepared statement of Mr. Norquist follows:]

  Statement of Grover Norquist, President, Americans for Tax Reform, 
                            Washington, D.C.

    Thank you for the opportunity to present my thoughts on pending 
legislation to increase the police powers of the federal government.
    My name is Grover Glenn Norquist and I serve as president of 
Americans for Tax Reform.
    I am also a member of the large coalition of conservative and 
liberal civic groups entitled ``In Defense of Freedom'' that has come 
together in response to the Justice Department's recent requests for 
expanded police powers (see addendum).
    Americans for Tax Reform has had one primary concern throughout: 
that the legislation cobbled together as a Justice Department wish list 
of powers not be pushed through Congress without the time and effort to 
look at what is in the legislation. I wrote a letter to all members of 
the House and Senate urging them to promise not to vote for any 
legislation on civil liberties restrictions that they had not actually 
read.
    I did receive one fax from the Hill asking if I was kidding.
    I was not.
    I am delighted that leaders in the House and Senate have demanded 
that this legislation be read, examined, debated and the good parts 
enacted in a deliberative fashion, without reacting in panic.
    I am also very pleased that the proponents of massive new powers 
for the federal government refrained from calling those of us who 
wanted the legislation actually read silly names. Those of us who feel 
strongly that the Constitution-and every little jot and tittle of the 
Constitution-was written on purpose, that the Second and Fourth 
Amendments were not mistakes, that the Fifth Amendment is not a 
loophole, have been able to make our voices heard in this time of 
national concern without people questioning our patriotism, seriousness 
or opposition to bad guys.
    As we now consider the House of Representatives compromise 
legislation that has the support of serious men such as Congressmen 
Sensenbrenner and Conyers, as well as the legislation proposed by the 
Justice Department, I would urge you to keep the following principles 
in mind.
    1. If we are passing new powers for the federal government in 
response to the murders of September 11, then any change in law should 
be asked to show how it would have stopped that terrorist act. If a new 
law would not have stopped the murders or helped us to catch and punish 
those responsible, then why are we changing the law?
    2. If this is a response to terror, then the word terrorism should 
appear not just in the title of the bill, but the new powers should be 
limited to cases of terror. For example, Congress passed the RICO 
statutes with the promise that it would be used against mobsters and 
then prosecutors have turned it against pro-life organizations. 
Congress gave the government powers to seize people's property-asset 
forfeiture-promising that it would be used against drug peddlers, and 
property seizures have swept the nation to the point that Congress had 
to revisit the statutes and reduce those powers that were being abused 
to the detriment of citizens.
    Now we are told the government just wants to fight against 
terrorists. Okay, then put limits in the use of these powers to 
terrorist cases and terrorist cases alone.
    3. Consider sunsetting all or part of the changes in law you 
propose. A bad law that lasts two years is less damaging than a bad law 
that lasts forever.
    4. Along with consideration of new powers, please consider 
reforming the institutions that have been using the powers you have 
granted in the past. The Pentagon has great credibility in asking for 
more money for the Defense Department because Secretary Rumsfeld has 
led the fight for a base closings commission and to end the production 
of old weapons to afford the production of new weapons. An institution 
looking to cut away old waste and to end destructive or wasteful 
programs can be more seriously entrusted with new monies.
    I do not to date see any effort by the intelligence community for 
serious self-examination, self-criticism or willingness to reform. 
Something went wrong. Demands for more money and more power would be 
more credible if they were accompanied by retirements, firings, self-
criticism and a public recognition that the present intelligence 
agencies and their procedures are by definition flawed. If serious 
self-examination is going on in private, that is only a first step. A 
democracy must see its government reforming itself before it can be 
asked to grant more powers and more money.
    5. If changes in the laws are needed, then what laws do you intend 
to remove? Is it believable that all the laws and powers passed to date 
are useful and productive and conducive to human liberty and security? 
That the only problems were too few laws? That isn't believable. The 
congressmen who passed the present set of powers that you now say are 
flawed made only one mistake: too few powers. Never too many.
    The In Defense of Freedom coalition is a broad cross section of 
American thought. I would like to speak now for conservative groups 
such as the Eagle Forum and the Free Congress Foundation about some of 
the proposals contained in the several bills that cause us the most 
apprehension.
     The use of wiretap information from foreign governments opens the 
door to introducing evidence against a US citizen in a US court of law 
that was gathered in a manner that violates the Fourth Amendment. It is 
disturbing that this vital protection against unreasonable searches and 
seizures could be waived.
     Deleting the requirement under the Foreign Intelligence 
Surveillance Act for a formal pleading to a court of law and the 
signature of a FISA judge or magistrate to secure business documents 
and records and replacing it with an administrative subpoena cuts the 
judiciary out of the equation completely. The judicial branch was 
established as a check on the other two. Not allowing for judicial 
oversight in this instance creates an imbalance of power wholly 
inconsistent with our constitutional principles.
     Allowing for the compelled disclosure of educational records is 
substantively unrelated to the effective pursuit and prosecution of 
terrorists, and would infringe on the privacy rights of all students 
throughout the nation. The National Statistics Act prohibited the 
disclosure of this information for reasons far better than any argument 
in favor of letting the government break open the seals.
     Applying a uniform standard for eliminating the mandatory notice 
of the issuance of search warrants when there is showing to a court 
that such notice would jeopardize an investigation has been 
appropriately derided as ``sneak and peek''. Such a standard would 
unacceptably hamper judicial discretion in conferring or denying 
authority for conducting ``sneak and peak'' searches.
     Expanding the authority for pre-trial asset restraint so that the 
government can take a defendant's property-even when the government 
cannot prove it is traceable to any offense-is sufficiently outrageous 
to not require further comment.
     Unleashing the ``Know Your Customer'' rules on the population 
would be a most unforgivable action. This idea, which has been rejected 
every time it has surfaced, would deputize bank employees by obligating 
them to monitor their customers' transaction activities, and requiring 
them to report to the federal government any transaction that fell 
conspicuously outside of a particular customer's ``normal'' practice.
    Some observers have been surprised to see the American Civil 
Liberties Union join with the American Conservative Union and other 
center-right groups such as Phyllis Schlafly's Eagle Forum, Paul 
Weyrich's Free Congress Foundation and Americans for Tax Reform.
    I am not surprised.
    While we may differ on many issues we are all Americans. America is 
a nation not of a single people or race, native tongue or religion. We 
are united by our dedication to the idea that men and women are and 
should by nature be free to live their lives as they see fit in 
liberty. The Constitution unites us. Historians have said that Afghan 
factions feud unless the British or Soviets invade and they unite in 
defense of the territory of Afghanistan.
    We are Americans and we unite in defense of the Constitution and 
ordered liberty.
    As Senators you have all sworn an oath to oppose all enemies of the 
Constitution-both foreign and domestic. Please, as this debate 
advances, keep an eye on the domestic enemies of the Constitution. They 
are the only ones who can do permanent damage to America.
                                Addendum
                         in defense of freedom
    1. On September 11, 2001 thousands of people lost their lives in a 
brutal assault on the American people and the American form of 
government. We mourn the loss of these innocent lives and insist that 
those who perpetrated these acts be held accountable.
    2. This tragedy requires all Americans to examine carefully the 
steps our country may now take to reduce the risk of future terrorist 
attacks.
    3. We need to consider proposals calmly and deliberately with a 
determination not to erode the liberties and freedoms that are at the 
core of the American way of life.
    4. We need to ensure that actions by our government uphold the 
principles of a democratic society, accountable government and 
international law, and that all decisions are taken in a manner 
consistent with the Constitution.
    5. We can, as we have in the past, in times of war and of peace, 
reconcile the requirements of security with the demands of liberty.
    6. We should resist the temptation to enact proposals in the 
mistaken belief that anything that may be called anti-terrorist will 
necessarily provide greater security.
    7. We should resist efforts to target people because of their race, 
religion, ethnic background or appearance, including immigrants in 
general, Arab Americans and Muslims.
    8. We affirm the right of peaceful dissent, protected by the First 
Amendment, now, when it is most at risk.
    9. We should applaud our political leaders in the days ahead who 
have the courage to say that our freedoms should not be limited.
    10. We must have faith in our democratic system and our 
Constitution, and in our ability to protect at the same time both the 
freedom and the security of all Americans.

    Chairman Feingold. Thank you, Mr. Norquist. I know you have 
another pressing engagement. You are, of course, welcome to 
stay as long as you would like, but feel free to leave when you 
need to.
    Before we go to Dr. Halperin, I would like to call on the 
distinguished Chairman of the committee, Senator Leahy, who, of 
course, was kind enough to make it possible for me to hold this 
hearing, but more importantly immediately made sure that this 
committee would be focused on the proper balance of these 
issues of our security and civil liberties.
    Senator Leahy?

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Well, thank you, Mr. Chairman. I will put 
my whole statement in the record. I just wanted to compliment 
you for doing this hearing. I think it is extraordinarily 
timely.
    Mr. Norquist, we have heard from your staff and I 
appreciate the help they have offered us, as well as a number 
of the staff have. I am one thinks that the Bill of Rights is 
very important. We have issues that go to the First Amendment, 
the Second Amendment, the Fourth Amendment, the Ninth 
Amendment, and so on, in here in the package that is before us, 
and we should look at all of them.
    I think it would have been a mistake to have had a rush to 
judgment and immediately pass something, even though some were 
saying we should just take whatever came from the 
administration and pass it immediately. I think that as soon as 
the fine print was read by people across the political 
spectrum, we would have had an absolute outcry in this country 
had we done that.
    I would just like to note one thing, Mr. Chairman, and you 
have spoken eloquently on this, and it is the violence that has 
been directed at Arab, Muslim and South Asian Americans over 
the past three weeks. It is abhorrent.
    We are in a time when Americans of every ethnic and 
religious background are grieving for the loss to our neighbors 
and our Nation. Everybody seems touched by what has happened. 
The prejudice and the hate crimes that have been spawned by a 
tiny number of people in America is intolerable. The President, 
the Attorney General and the FBI Director have all reiterated 
that fundamental precept, and I compliment President Bush and 
Attorney General Ashcroft and Director Mueller for that.
    Americans treat their fellow men and women with dignity and 
respect, not prejudice and hate. That is what makes us a great 
country. Guilt by association and stereotyping have no place in 
American law or American life. Individual accountability is at 
the core of our Constitution.
    As the grandson of immigrants, grandparents who didn't 
speak any English when they came to our shores, and with a 
mother and a wife who are first-generation Americans who didn't 
speak English until they began school, I know how easy it is to 
stereotype people.
    We are all Americans. We have all been badly, badly injured 
by these terrorist attacks. Let's not increase the injury to 
ourselves. We should value every single American, cherish them, 
and remember that it is that kind of diversity that made us a 
great Nation.
    So, Mr. Chairman, you do us a great service in doing this. 
I thank you and Senator Durbin and Senator Sessions for taking 
the time. I will put my whole statement in the record.
    Chairman Feingold. Without objection.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    I am grateful to Senator Feingold for holding this timely hearing. 
Our history has taught us that in times of national crisis, we must 
cherish our constitutional freedoms all the more. We should bring that 
perspective to the ongoing negotiations over anti-terrorism 
legislation. We will receive advice today from witnesses with a long 
history of dedication to constitutional principles.
    We have been discussing many constitutional issues in the wake of 
the terrorist attacks on America, from Fourth Amendment protections 
against unreasonable search and seizure to due process concerns about 
the treatment of legal permanent residents. These are important issues 
that our witnesses will discuss today. First, however, I would like to 
address the violence that has been directed against Arab, Muslim, and 
South Asian Americans over the last three weeks. In a time when 
Americans of every ethnic and religious background grieve for the loss 
to our neighbors and our nation, this prejudice--and the hate crimes it 
has spawned--is intolerable. The President, the Attorney General and 
the FBI Director have all reiterated that fundamental precept. 
Americans treat their fellow men and women with dignity and respect, 
not prejudice and hate. Guilt by association and stereotyping have no 
place in American law or American life--indeed, individual 
accountability is at the core of our Constitution.
    Our nation is united today against the terrorist threat, with 
greater strength and resolve than I have seen in my lifetime. More than 
that, however, I believe there is a broad consensus in our nation that 
we must battle terrorism without sacrificing that which makes our 
nation unique. Our constitutional values have united us for more than 
200 years. We must improve our ability to find and punish the evildoers 
who attacked innocent people on September 11 and to prevent similar 
tragedies from occurring in the future. But we should not compromise 
the civil rights of our citizens in the process. We will protect our 
security. We will not give up our freedom. The values we hold dear are 
what define us as a nation. That commitment is what will allow our 
republic to remain strong.
    The disastrous loss of life on September 11 will never be 
forgotten. Those losses and the damage to our economy and our great 
buildings--and our national psyche--cannot be minimized. But even if 
disaster were to strike our great Capitol or other precious monuments 
of marble and stone, we would rebuild and go on. Terrorists cannot take 
from us the ideals of Washington and Jefferson and Lincoln, or our 
fidelity to the Constitution.
    We do not have to travel very far back into our history to find a 
time when we disregarded our principles in a time of crisis. Our 
internment of Japanese Americans in World War II was a shameful chapter 
in our history, and we should not repeat our mistake. The apologies we 
have made in recent years remind us of the long shadow cast by our 
worst acts, and serve as an important reminder of the dangers of 
overreaction.
    Trial by fire can refine us or it can coarsen us. If we hold to our 
ideals and values, then it will strengthen us. Americans are united and 
all the free world, all civilized nations, all caring people join 
together with us. I trust that we will seek and serve justice and 
demonstrate to the world not only by our resolve but by our commitment 
to our constitutional principles that the United States remains strong 
even in the face of these terrorist atrocities.
    Those who have attacked us hate what is best in America--our 
diversity and our freedom. Now more than ever, we must preserve and 
extend those values. Anything less would mark defeat and would dishonor 
those lost in the attacks and rescue efforts on September 11.

    Chairman Feingold. Mr. Chairman, I just want to say that I 
am grateful for your remarks with regard to the civil rights 
issues. When I had an opportunity to speak in response to this 
tragedy the day after September 11, I talked about our resolve 
as a Nation and, of course, our gratitude for all the heroism. 
But there were two cautions. One had to do with civil liberties 
and the other had to do with civil rights.
    Working with you, Mr. Chairman, this subcommittee will hold 
a hearing in the near future on the civil rights issues 
concerning acts of violence and discrimination against Arab 
Americans, Muslim Americans, South Asians and others.
    Thank you, Mr. Chairman.
    With that, I am delighted to turn to Dr. Morton Halperin. 
Dr. Halperin is currently a Senior Fellow of the Council on 
Foreign Relations and the Chair of the Advisory Board at the 
Center for National Security Studies. Dr. Halperin has served 
the Federal Government in numerous capacities with the National 
Security Council and the Department of Defense in the 
administrations of Presidents Johnson and Nixon, and most 
recently President Clinton. Much of his work is focused on 
issues affecting both civil liberties and national security.
    We appreciate you being here. Go ahead, Dr. Halperin.

STATEMENT OF MORTON H. HALPERIN, CHAIR, ADVISORY BOARD, CENTER 
 FOR NATIONAL SECURITY STUDIES, AND SENIOR FELLOW, COUNCIL ON 
              FOREIGN RELATIONS, WASHINGTON, D.C.

    Mr. Halperin. Thank you very much, Mr. Chairman. It is a 
great pleasure for me to testify once again before this 
committee. I am testifying on behalf of the Center for National 
Security Studies.
    I want to commend this subcommittee for holding this 
hearing, and I also want to commend Senator Leahy for the 
leadership he has shown in insisting that the Senate will look 
carefully at what the administration proposes and work hard to 
make sure that it is consistent both with our security needs 
and in defense of our liberties. I think we are grateful to him 
for the leadership he has shown, as well as to the other 
members of this committee who have insisted that the bill be 
read and that we know what we are doing before we do it.
    I also want to associate myself with Mr. Norquist's 
statement. I think I agreed with almost every word of it, and 
certainly with the five principles that he suggested to you.
    I thought what I might most usefully do, since the text is 
changing, is to try to focus on some basic principles, and in 
particular on the FISA legislation, and to try to remind us all 
how this came about and what the compromises were that led to 
this legislation. I might say that I was, in fact, myself 
deeply involved in those discussions and negotiations.
    As the committee knows, until the mid-1970s the Justice 
Department regularly conducted warrantless electronic 
surveillances in the United States, and it was only after the 
Supreme Court brought wiretaps within the Fourth Amendment, and 
the abuses of the intelligence agencies were exposed so that 
intelligence officials began to face lawsuits and other 
restrictions, that the Government decided that it wanted 
congressional legislation--and this was the Ford administration 
initially--to conduct electronic surveillances for national 
security purposes.
    It requested this authority. Again, it came up and said the 
bill had to be passed immediately, that not a comma could be 
changed. Congress insisted on detailed negotiations, which were 
held, and it finally agreed that it would proceed with this 
legislation. But there was a compromise struck and I think it 
is important to remember what the elements were of that 
compromise.
    Congress gave the executive branch authority to conduct 
electronic surveillance for national security purposes under a 
different standard than the probable cause of a crime standard 
in Title III. Equally important, it created a special court to 
make sure that this information did not leak, and it permitted 
the Government never to have to notify the target of the 
surveillance that he or she had been the target, even if the 
person was a United States citizen and if the Government 
concluded in the end that the person has not committed any 
crime and could not be indicted.
    Now, in return, the Government agreed to judicial 
supervision. It agreed to provisions which minimized the 
interception of non-germane information. Most important, the 
Government agreed that it would use this information only for 
foreign intelligence purposes, and that it would switch to a 
Title III warrant if it initiated a criminal investigation.
    In addition, I want to add, since the Justice Department 
seems to have forgotten this, that it also agreed that Title 
III and FISA would be the sole authority to conduct 
surveillances within the United States, and that FISA would be 
the sole authority to conduct surveillances for national 
security purposes.
    Congress repealed the provision it had written into the 
original wiretap law which left open the President's authority 
to conduct electronic surveillances without a warrant, and the 
President agreed in signing the legislation that this was the 
sole authority to conduct electronic surveillance for national 
security purposes.
    So to now hear the Justice Department suggest that it 
doesn't matter what is in FISA because the President has the 
authority to do this is, I think, just wrong. Whatever 
authority the President may have had before this legislation 
was enacted, we are now in Justice Jackson's famous third 
category, where the Congress has legislated procedures to deal 
with a problem. It has asserted that those procedures are the 
sole authority. The President signed that legislation and 
accepted it, and I think it is far too late for the Justice 
Department to argue that all of this is superfluous because we 
could do this without a warrant in any way we wanted to, and 
therefore don't look at the details of the changes.
    Now, I think it is from this perspective that one must look 
at the proposals from the Justice Department, and the most 
disturbing one is the provision which would essentially allow 
the Justice Department to begin a surveillance even it has 
already decided that its primary purpose is to develop evidence 
to indict and convict somebody of a crime and even if that 
person is a United States citizen.
    I think it is essential to preserve the basic compromise, 
which was these lesser standards were permitted because the 
purpose was not to gather evidence of a crime, and that the 
Government needs to be held to the notion that if it is seeking 
evidence of a crime to indict somebody, it needs to use the 
procedures of Title III. I think the Intelligence Committee in 
the Senate has developed procedures, and I think this committee 
is working on them, which I think will deal with that problem.
    There is also the question of how you exchange information 
between the law enforcement investigations and criminal 
investigations. Here, I think we do need some changes. The 
recent events demonstrate that we need to find better ways to 
coordinate information that is developed by the FBI that needs 
to reach the CIA and the CIA to reach the FBI.
    But I would just make two points about that. One is that 
the real problem is the reluctance of the agencies to share 
information. That is why the Senate Intelligence Committee has 
a provision trying to compel the FBI to share information which 
it is lawfully able to share.
    The second problem is to make sure that we limit that to 
terrorism information, that we limit it to foreign intelligence 
information which the foreign intelligence agencies need, and 
we do so in an orderly way which ensures that information about 
lawful political activity will not suddenly disperse to the 
intelligence agencies.
    I think my time is expired, Mr. Chairman. I appreciate the 
opportunity to testify here and I look forward to responding to 
questions.
    [The prepared statement of Mr. Halperin follows:]

  Statement of Morton H. Halperin, Chair, Advisory Board, Center for 
   National Security Studies, and Senior Fellow, Council on Foreign 
                      Relations, Washington, D.C.

    Mr. Chairman,
    It is a very great pleasure for me to appear again before this 
distinguished subcommittee.
    Since the text of the legislation remains a moving target I thought 
it would be more useful if I stepped back and discussed a few issues in 
more general terms.
    This committee does not have to be reminded that intelligence 
agencies have in the past abused their authority to spy on and even 
disrupt lawful political activity under the guise that those protesting 
the actions of our government were in fact agents of a foreign power. 
Now we are told that the efforts of Congress to expose those abuses, 
especially the work of the Church Committee, is somehow responsible for 
the failure of the CIA to learn about and prevent the tragic acts of 
September 11. This is an outrageous characterization, both because in a 
democracy we must be able to discuss abuses of power and discuss how to 
prevent them, but even more because the Church Committee report did not 
lead to any legislation limiting the authority of intelligence 
agencies. In fact, to this day, Congress has not legislated any limits 
on the ability of the CIA or other intelligence agencies to conduct 
surveillance in the United States and abroad beyond that initial 
prohibition in the act creating the CIA that asserted that the CIA 
would have no internal security functions.
    This brings me to FISA which is a grant of authority by the 
Congress to the President and not a limit on what authority would 
otherwise exist. Since there is a good deal of confusion about this I 
want to take a moment to remind the Committee how FISA came about. I 
speak from having been deeply involved in the process which led to the 
enactment of FISA.
    Until the mid-1970s the executive branch regularly conducted 
electronic surveillances for ``national security'' purposes without a 
court order. It was only after the Supreme Court held that wiretaps 
were covered by the Fourth Amendment and the scandals revealed by the 
Church and Pike Committees opened the intelligence agencies to threats 
of lawsuits and damages that the government reconsidered its position 
and decided that it needed congressional authorization to conduct 
electronic surveillance for national security purposes.
    (In the interest of full disclosure, I should note for the record 
that I was the subject of a 21 month warrantless wiretap of my home 
telephone from 1969-71. After I and my family filed suit the court 
found that the surveillance violated our constitutional rights. Reading 
the governments logs of your private phone calls for an extended period 
does bring sharply into focus the danger of abuse and the value of 
privacy).
    FISA thus arose from a request from the government for authority to 
conduct electronic surveillance for national security purposes. The 
government explained that it could not use Title III procedures for a 
number of reasons including its desire to gather foreign intelligence 
information even when no crime was suspected and its unwillingness ever 
to provide notice that it had conducted a surveillance.
    Congress debated long and hard about FISA and enacted legislation 
that was substantially different from the original draft submitted by 
the administration with the usual demand that it be enacted immediately 
and without any changes.
    In the end Congress struck a deal with the administration with the 
support of some civil libertarians including me (I then spoke for the 
ACLU on these issues). The basic compromise was this: Congress gave the 
executive branch the authority to conduct electronic surveillance for 
national security purposes under a lesser standard than the probable 
cause that it would gather evidence of a crime. Equally important, the 
government was given permission to keep the surveillance secret and not 
provide the notice required by Title III when the surveillance ended. 
In return the government agreed to judicial supervision, and provisions 
to minimize the interception of non-germane information. Most 
important, it was agreed that the government would not use the FISA 
procedures if it was conducting a criminal investigation and would 
switch to a Title III warrant if it began a criminal investigation.
    Subsequently, in 1994 Congress broadened FISA to include physical 
searches which can be conducted even against the homes of Americans 
without a warrant, without knock or notice, and without ever informing 
the person that the government has surreptitiously acquired information 
from his home. I believe that this provision is clearly 
unconstitutional and the Supreme Court seems to agree (See Richards v. 
Wisconsin (1997) holding that a blanket exception allowing no-knock 
entries for warrants served in drug cases violated the 4th Amendment). 
But that is for another day. For our purposes, we need to keep in mind 
that we are talking about the secret searches of the homes of Americans 
and not just wiretaps of foreign embassies.
    It is from this perspective that the proposed amendments to FISA 
must be examined.
    The most disturbing provision in the administration draft bill is 
the one permitting the government to initiate a FISA surveillance even 
when the primary purpose of the government is to gather evidence for a 
criminal prosecution. As I said, FISA authority was given to the 
government for situations in which it was not seeking to indict 
individuals for crimes, but rather to gather information for foreign 
intelligence purposes. To now permit these procedures to be used in a 
criminal investigation would almost certainly be unconstitutional and 
would certainly be dangerous.
    Whether the change in the law is from ``the'' to ``a'' or to 
``significant'' the result is the same. The Executive would always be 
able to use FISA to conduct surveillance whenever it believed that the 
people being surveilled were agents of a foreign power thus 
circumventing the notice and probable cause requirements of the Fourth 
Amendment.
    Any legitimate problem that the government has in this area can be 
cured either by explicitly permitting exchanges between law enforcement 
officials and those conducting a FISA surveillance or by permitting the 
government to seek two warrants for the same surveillance, as the 
Senate Intelligence Committee leaders have suggested.
    A second problem with the administration bill is the effort to 
permit the government to get warrants for six months or a year for FISA 
searches of individuals it suspects are agents of a foreign power as it 
now has for foreign powers themselves. Here again, some history may 
help to explain why this provision was written as it was and why it 
should not be changed.
    When FISA was being debated in the Congress the shorter time limits 
on warrants applied to all targets. The government pointed out that it 
made no sense to go back so often if the target was, say, the Soviet 
embassy. And so Congress agreed to permit longer warrants for foreign 
powers themselves. Now the government seeks to bootstrap using this 
difference to argue that it should not be required to seek frequent 
warrants against agents of a foreign power. We need again to recall 
that the government has been granted the authority to wiretap a person, 
even an American citizen, or secretly break into his home and 
surreptitiously remove his papers. It is not too much to ask that the 
government return regularly to a specially selected judge in a separate 
court with full security protections to demonstrate that it was right 
in thinking that the target was an agent of a foreign power engaged in 
illegal activity.
    With the indulgence of the Committee I would like to comment on two 
other matters raised by the Administration's draft.
    The first relates to the provisions which permit the government to 
share information gathered for law enforcement purposes, including 
Title III surveillance and grand jury testimony, with intelligence 
officials. Given the activities of terrorists who operate both in the 
United States and abroad, I believe that such sharing is appropriate, 
but I believe it needs to be limited in several ways. First, when the 
information is gathered under judicial supervision, the court's 
approval should be required for the transfer. Second, the information 
transferred should be limited to Foreign Intelligence Information as 
that term is defined in FISA. Third, the disclosure should be limited 
to those officials who are directly involved in a terrorism 
investigation. Finally, the information should be marked and 
safeguarded so that these restrictions can be enforced, much as 
classified information is marked and stored.
    Finally, I want to comment on the extraordinary proposal to include 
disclosure of the names of covert agents in the new list of federal 
terrorism crimes. This is a speech crime which has no place in this 
list. I was deeply involved in the development of this statute as well. 
Again, although the administration, in this case as with FISA, both 
Democratic and Republican, insisted on immediate action and no changes, 
Congress deliberated carefully for several years. Before it enacted the 
statute it insisted on a number of safeguards to insure that it would 
not prevent the press from publishing information it had acquired by 
legitimate means. For example, Congress inserted a bar on conspiracy 
provisions so that a reporter could not be accused of conspiring with a 
source. This protection and many others would be swept away if this 
crime remains on the list of federal terrorism crime.
    Mr. Chairman, there is an important lesson in the history of the 
enactment of FISA and the Intelligence Agents Identities Act. It is 
that if we take both national security and civil liberties seriously, 
and if we work hard and take the time that we need we can find 
solutions that protect them. The Congress deserves high praise for not 
giving in to the administration's demand that it act first and read 
later in the face of the unbelievable and unfathomable events of 
September 11. We have gone very far in a very short time from the 
administration's first draft. With a little more time and a little more 
give and take, I believe we can arrive at a text which strikes an 
appropriate balance. I urge you to stay at the task.
    I commend the subcommittee for holding this hearing. I appreciate 
the opportunity to testify and would be pleased to answer your 
questions.

    Chairman Feingold. Thank you, Dr. Halperin. That was very 
clear and helpful. I appreciate your being here.
    Our next witness is Professor John O. McGinnis. Professor 
McGinnis teaches at the Benjamin N. Cardozo School of Law in 
the City of New York. He holds degrees from Harvard University, 
Oxford, and Harvard Law School. He served as Deputy Attorney 
General of the Office of Legal Counsel at the Department of 
Justice from 1987 to 1991.
    I welcome you, Professor, and thank you, and you may 
proceed.

 STATEMENT OF JOHN O. MCGINNIS, PROFESSOR OF LAW, BENJAMIN N. 
 CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW YORK, NEW YORK

    Mr. McGinnis. Thank you very much, Senator Feingold, Mr. 
Chairman, and I am very pleased to be here to speak about this 
important issue of how to preserve our liberties in a time of 
terrorism.
    It is a question necessarily of a delicate balance between 
giving tools to our national security agencies and law 
enforcement, on the one hand, and preserving those civil 
liberties, because ultimately we want to preserve all our 
freedoms, not only our civil liberties, the ability to prevent 
intrusions from the Government, but also our other liberties, 
our liberty to live unharmed from the kind of atrocities that 
happened on September 11.
    Our Constitution understands that delicate balance. The 
most important provision that is at issue with respect to law 
enforcement matters, the Fourth Amendment, prevents 
unreasonable searches and seizures. By using the word 
``unreasonable,'' it invites a kind of balance that is 
sensitive to the context.
    The most important context to be reminded of here is the 
distinction between mere law enforcement matters and national 
security and war matters because there is no doubt that what 
happened on September 11 was not simply thousands of murders. 
It was, as many Members of Congress have acknowledged, an act 
of war against the United States.
    In the context of an act of war against the United States 
and a foreign attack on the United States, necessarily what is 
reasonable changes because the context has fundamentally 
changed. In that regard, I think some of the provisions of this 
bill perhaps have been a little unfairly criticized because 
they don't take sufficient account of the national security 
context.
    Let me just begin very briefly with some of the changes to 
FISA. The Supreme Court has always been very clear that its 
decisions under the Fourth Amendment have never actually 
applied in anything like full force to foreign intelligence-
gathering. Again, that is because of the different national 
security context.
    Once again, we have to be very careful that any of these 
changes give these extraordinary authorities only in the 
national security context. But as I read the bill, the 
provisions would continue to require judges to make sure that 
there is a national security collection purpose for every 
gathering of intelligence authorized by FISA. That seems to me, 
therefore, an entirely constitutional provision.
    Indeed, not to expand FISA in this way, not to allow 
intelligence-gathering whenever there is a purpose to gather 
intelligence, would mean that some national security 
collections would not be addressed because, of course, there 
are some national security collections that also have very 
substantial law enforcement benefits.
    Under general principles of Fourth Amendment law, it does 
not impugn a search so long as it has a justification--here, 
the national security justification--if it has other beneficial 
justification. So I do not see any constitutional problem with 
the enlargement of that portion of the FISA authority.
    Let me say a few words about the detention of aliens 
provisions. I defer to Members of Congress and to those far 
more expert in what our needs are to understand how far we need 
to detain aliens for national security purposes. But once 
again, there is a very strong distinction here between national 
security and ordinary law enforcement purposes. We are not 
talking about the detention of aliens for drug offenses and 
things of that sort.
    Previously in this country when there have been wars, it 
has been quite well acknowledged from the first Congress that 
enemy aliens can be detained because they do not have the 
presumption of loyalty to the United States when another nation 
state attacks.
    Of course, we are in a very different kind of war. No 
nation state has attacked us. We have been attacked by an 
irregular militia, and it is very difficult to identify those 
aliens within our midst who form that illegal militia. Of 
course, most aliens in the United States, the huge majority, 
are hard-working men and women who become American citizens, 
and it would be utterly wrong to detain people simply because 
they share the nationality of those people who hijacked the 
planes. Therefore, we need some kind of finer-grained authority 
that focuses simply on aliens who we have some reason to 
believe pose some danger to national security.
    So in conclusion, Mr. Chairman, I would say that it is very 
important as you go forward with this bill to make a very 
strong distinction between contexts. The Supreme Court, and 
indeed common sense, recognizes that acts of war are very 
different from a mere law enforcement matter and may justify 
what are extraordinary measures, certainly measures that we 
should never use in ordinary law enforcement matters. 
Therefore, we have the FISA collection legislation, and 
therefore in past times of war we have detained enemy aliens.
    So we want to keep a very clear line. On the other hand, 
there is no reason not to use this opportunity to rationalize 
law enforcement authorities so long as we continue with the 
usual principles that are applicable to law enforcement and not 
to national security.
    The Fourth Amendment speaks of reasonableness, and that 
means that context is all. And the context has fundamentally 
changed with the attacks on our country on September 11, and 
the danger of biotechnology, nuclear and chemical warfare 
against us. That doesn't mean we can't preserve our civil 
liberties. It does mean that we have to take account of the 
changed context in national security considerations.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. McGinnis follows:]

 Statement of John O. McGinnis, Professor of Law, Benjamin N. Cardozo 
         School of Law, Yeshiva University, New York, New York

    Thank you for the opportunity to testify on the ``Anti-terrorism 
Act of 2001.'' This act deserves careful consideration as we attempt to 
preserve all our liberties--both the freedom from unwarranted 
intrusions by the government and the freedom to live and prosper 
unharmed by the new enemy that threatens mass atrocities of a kind 
previously unknown. This new threat to our national security raises 
difficult issues, because the threat is both criminal and military, and 
comes from enemies abroad and enemy aliens residing within our country. 
For instance, it is widely agreed that the attacks on the World Trade 
Center and Pentagon were acts of war that may require a military 
response both to retaliate against the perpetrators and to prevent 
similar atrocities. Yet they were also crimes committed on American 
soil investigated by the FBI and other law enforcement agencies. These 
investigations, in turn, may not only have law enforcement purposes but 
diplomatic and military purposes as evidence is gathered and shared to 
strengthen our coalition against terrorism.
    Responding to this outrage and preventing similar outrages in the 
future thus tests the line between domestic and foreign affairs--a line 
that is important for civil liberties. In foreign affairs the federal 
government must exercise our common strength on behalf of the nation to 
defeat enemies bent on the destruction of the United States. This 
defense has not been and cannot be constrained by the same restrictions 
that properly apply to domestic law enforcement, particularly now when 
our enemies are bent on using weapons of mass destruction against our 
citizens and are delivering these weapons not by a uniformed force but 
by a covert conspiracy of enemy aliens secreted throughout our 
continent. At the same time as we address the grave threat from this 
irregular militia, it is, of course, important not to allow the 
extraordinary powers vested for national security purposes to be used 
for mere law enforcement purposes.
    Because the bill is as yet in draft, I will not comment on (or 
endorse) in detail every provision but suggest instead that in its key 
concepts the bill as whole adheres to a constitutional line between the 
procedures appropriate to protect national security and those 
appropriate for law enforcement. The principal exceptions in this bill 
to the usual law enforcement requirements, such as warrants and 
probable cause for search and seizure, are properly limited to a single 
context--foreigners whose activities may undermine national security or 
who associate with terrorist organizations. In particular the two 
provisions of the bill that have been most criticized--the expansion of 
the Foreign Intelligence Surveillance Act (FISA) and the detention of 
aliens for national security reasons--fit within the conceptual 
framework that allows the executive branch acting with congressional 
approval to take action for the national security of the United States 
beyond that which it can take for mere law enforcement purposes.
    To begin with FISA, the Supreme Court has recognized that the 
normal strictures of the Fourth Amendment may not apply in situations 
involving the protection of national security against foreign powers 
and their agents. Indeed, Justice White, concurring in Katz v. United 
States, flatly stated that the warrant procedure and a magistrate's 
judgment should not be required ``if the President of the United States 
or his chief legal officer, the Attorney General, has considered the 
requirements of national security and authorized electronic 
surveillance as reasonable.'' Nevertheless, under FISA Congress has 
decided to require that such surveillance of foreign powers or foreign 
agents be authorized by district courts designated by the Chief Justice 
of the United States. When approved by the Attorney General, the 
government presents application for warrants to FISA judges under in 
camera, ex parte procedures designed to safeguard intelligence 
information.
    The current bill makes relatively minor revisions to the procedures 
for FISA application that make it easier to make expeditious requests 
and do not undermine any safeguards. The one change of substance is to 
permit FISA collection when foreign intelligence gathering is ``a 
purpose'' of the surveillance. Previously such collection was permitted 
only when such intelligence gathering was the sole or primary purpose 
of the investigation.
    This change is constitutional. First, as noted above, it is not at 
all clear that FISA procedures are required at all when the President 
or the Attorney General certifies that such collection is reasonable 
given national security considerations. If one of the bona fide 
purposes of the collection of information is to promote national 
security, the collection is by definition reasonable in the national 
security context.
    Even more fundamentally, so long as collection has a bona fide 
national security purpose (and FISA judges are available to make sure 
that it does) its law enforcement benefits do not undermine its 
national security justification. To claim otherwise would be to suggest 
that action which is justified to protect our national security somehow 
becomes illegitimate if it has other non-illicit, and possibly 
beneficial, consequences. Moreover, without an expansion of the FISA 
definition some national security objectives would go unaddressed, 
because some national security collections may also have substantial 
law enforcement benefits. Indeed, terrorist acts are simultaneously 
crimes and profound threats to our national security and thus it would 
be often difficult for the Attorney General or even a court to 
determine whether the primary purpose of a collection is national 
security or terrorism.
    Finally, as a general matter of Fourth Amendment law, the Supreme 
Court has ruled that it is not proper to impugn a search that is 
legitimately justified for one purpose simply because the search has 
other purposes. In a recent case, the Court upheld the search of a car 
by a policeman who had cause to stop the car based upon a traffic 
violation although he was also motivated by the belief that drugs were 
in car. So long as a particular search is justified by a purpose 
appropriate to that search, the search can legitimately serve other 
purposes.
    Now I turn to the indefinite detention of aliens if the Attorney 
General has reason to believe that they will engage in activity that 
endangers national security. It is important to note at the outset that 
such detention authority is not asked for law enforcement reasons, like 
drug interdiction. Once again the distinction between national security 
and law enforcement is crucial to my analysis. Assuming that the Fourth 
Amendment applies to national security actions, the government has 
special needs unrelated to law enforcement that justify detentions 
without individualized probable cause, because such actions are 
reasonable to counter the threats that those resident aliens who become 
terrorism's guerrillas pose to our national security. It is also 
reasonable not to fix a definite period for detention of such an alien. 
He can reasonably be detained until he can be deported or until the 
threat that he will engage in actions threatening to national security 
is abated.
    The language of the Fourth Amendment is itself instructive: ``The 
right of the people to be secure in their persons, houses, papers and 
effects, against unreasonable searches and seizures, shall not be 
violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched and the persons or things to be seized.'' Neither the 
text of the amendment nor its history melds the two clauses into a 
single provision. Nowhere does the Fourth Amendment say that all 
searches and seizures conducted without the warrant and probable cause 
required under the second clause are unreasonable under the first 
clause. The two clauses are therefore properly viewed as distinct. As 
the famous scholar, Telford Taylor noted, the Framers were concerned 
about ``overreaching warrants'' and ``unreasonable searches and 
seizures.''
    The Court has thus declined to view the ascertainment of probable 
cause or the issue of a warrant as the sine qua non of a reasonable 
search and seizure. It has said: ``The test of reasonableness under the 
Fourth Amendment is not capable of precise definition or mechanical 
application. In each case it requires a balancing of the need for a 
particular search against the invasion of personal privacy that the 
search entails. Courts must consider the scope of the particular 
intrusion, the manner in which it is conducted, the justification for 
initiating it, and the place in which it is conducted.''
    In particular, the Supreme Court has permitted searches and 
seizures without a warrant or probable cause when the government has 
important purposes other than enforcing the criminal law. Recently the 
Court set out carefully its rational for searches and seizures without 
warrant or probable cause. Conceding that warrants and probable cause 
were generally required when only law enforcement matters were at 
stake, the Court said that searches without warrants or probable cause 
were constitutional ``when special needs, beyond the normal need for 
law enforcement'' make the warrant and probable cause requirement 
inappropriate. Once again the ultimate measure of the government 
procedures is ``reasonableness.''
    In this case the government has special national security needs 
that are far greater than protecting the health of citizens or 
enforcing the immigration laws--cases where special need searches have 
been upheld. Consequently the justification for intruding on 
individuals is commensurately greater. Indeed, in a world where alien 
terrorists have used weapons of mass destruction, as they did against 
the United States on Sept. 11, and where they have the capacity to use 
even more devastating weapons, such as biological, chemical and nuclear 
weapons, the United States has extraordinary needs beyond simple law 
enforcement that may well be defeated by requiring probable cause for 
detaining aliens. Even if the government does not have the substantial 
proof required to show probable cause that aliens are engaged in a 
terrorist conspiracy or have information about such a terrorist 
conspiracy, the consequences may now be so catastrophic to the health 
and safety of citizens as to justify holding such aliens in detention 
on a less demanding ``reason to believe'' standard.
    Another way of understanding the reasonableness of this standard is 
to reflect on the military nature of the threat. If a military group of 
saboteurs infiltrated the United States in wartime, we would not be 
required to extend them all the courtesies of the Bill of Rights as we 
try to find and hold them. The United States now faces worse threats 
constituted by a group of non-uniformed belligerents who are aiming at 
mass destruction of civilians. Although these acts take place in our 
country, the simple law enforcement model for controlling these acts is 
as inapposite as if we applied it to military saboteurs.
    We should also note that this authority is appropriately limited to 
aliens. Unlike citizens, aliens have not taken an oath of loyalty to 
the United States. Thus, in wartime enemy aliens are ordinarily 
detained for the duration of hostilities. The constitutionality of this 
practice has not been questioned by the courts. Let me be clear that I 
would repudiate any attempt to detain citizens simply because they 
share the country of origin of enemy aliens. Naturalized citizens, 
whatever their country of origin, have every bit as much of a 
presumption of loyalty as citizens born in the United States. It is 
possible to support the constitutionality of this new authority for the 
Attorney General and to reject, as I do, the holding of Korematsu v. 
United States where the Court upheld the internment of citizens of 
Japanese ancestry during World War II without any showing that they 
were disloyal to the United States.
    Today we are right to presume the loyalty of our citizens but we 
still face the problem of enemy aliens in our midst. But because no 
foreign nation state is prosecuting the war against us, we cannot 
determine the identity of potentially alien enemies through the old 
category of the alien's nation state. Nevertheless these enemy aliens 
are even more dangerous because they, and not others from their home 
countries, are the main vectors of attacks on the United States. And 
unlike previous wars, they may have ready access to weapons of mass 
destruction targeted at civilians. In these circumstances, it is 
reasonable to provide the Attorney General with authority to find and 
detain the relatively few aliens who are our potential enemies. This 
new kind of alien detention authority is proportionate to the new kind 
of war we face.
    The Supreme Court has held that Congress has very substantial power 
in immigration matters. It is well-established that ``over no 
conceivable subject is Congress's power more complete.'' To be sure, 
the Court recently interpreted Congress not to have authorized 
indefinite detention of deportable aliens in light of the serious 
constitutional questions that it would raise. But once again the Court 
expressly carved out consideration of national security matters from 
the scope of its constitutional concerns. It stated: ``Neither do we 
consider terrorism or other special circumstances where special 
arguments might be made for forms of preventive detention and for 
heightened deference to the judgments of the political branches with 
respect to matters of national security.''
    Some have argued that the authority to detain aliens should not 
extend to those who are not flight risks. With respect, flight risk is 
not the only reason for detention. In a war situation, enemy aliens can 
pass information to one another in a network. The risk is the same in 
terrorist networks. Other provision of the bill have drawn objections 
as well. I do not have the space to address all the objections, but 
many can be addressed under the framework here. For instance it is 
appropriate to share grand jury information with government personnel 
to counter threats to national security. Such sharing, in the words of 
Alexander Hamilton, puts forward ``our common strength for the common 
defense.''
    Other provisions of the bill simply rationalize the law enforcement 
model in light of changing circumstances. Pen registers have been 
upheld as applied to telephones, because according to the Supreme Court 
individuals have no reasonable expectation of privacy in the numbers 
they call because that information has been provided to the telephone 
company. Similarly, the routing and addresses of websites that 
individuals access over the Internet is available to their Internet 
providers. It is thus appropriate that they be made available under the 
same standards as pen registers for telephones. Particularly given the 
convergence of various forms of communications, failure to include 
Internet addresses and routing under the same standards as numbers 
would eventually make the pen register an obsolete device in the 
toolbox of law enforcement.
    In conclusion, I would stress that many of these new provisions 
would simply rationalize previously existing law enforcement 
authorities. Such rationalization is a good idea at any time, but 
particularly at this time. On the other hand, the principal 
extraordinary authorities granted by the bill are appropriately limited 
to protecting national security and defending against the acts of war, 
not mere criminal lawbreaking, that all acknowledge now threaten the 
United States.

    Chairman Feingold. Thank you, Professor McGinnis.
    Our next witness will be Jerry Berman, from the Center for 
Democracy and Technology. Mr. Berman is currently the Executive 
Director for the Center, and he has written widely on the 
complex civil liberties issues surrounding electronic 
communications. He has also served on the Child Online 
Protection Commission in 1999, studying methods for protecting 
children from objectionable material on the Internet that would 
be consistent with constitutional values.
    We appreciate your willingness to share your expertise 
today and you may proceed.

   STATEMENT OF JERRY BERMAN, EXECUTIVE DIRECTOR, CENTER FOR 
           DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C.

    Mr. Berman. Thank you, Mr. Chairman, and I again commend 
the committee on behalf of our organization for holding this 
hearing. It is critically important.
    I also shared in the negotiations of the Foreign 
Intelligence Surveillance Act in 1978. I try to take it out of 
my resume to try not to date me, but I worked with Mr. Halperin 
and others. What was different is that we had a negotiation 
between civil libertarians, the Justice Department and Hill 
people to fine-craft this legislation.
    If we do not fine-craft the legislation that is in front of 
us, I am afraid that what Mr. Halperin says is that the law 
between law enforcement and intelligence which was set up after 
Watergate, and by the way not in a time of peace, but in the 
middle of the Cold War, et up to avoid what happened during 
Watergate under J. Edgar Hoover--secret intelligence and broad 
intelligence--we wrote those restrictions to create that wall 
and I do not believe that wall has to come down.
    The Senate Intelligence Committee has recommended that you 
can continue a primary purpose intelligence investigation which 
is secret, never disclosed to the witness, never disclosed to 
the target even if they are never convicted of a crime, and at 
the same time open a Title III warrant. You can continue under 
both tracks for your criminal and continue under your 
intelligence track, and if that requires more cooperation 
between law enforcement and the intelligence agencies over 
which information goes in which pot, that is something we would 
support. The cooperation is obviously necessary, so why don't 
we look at a dual track?
    Let me turn to the Internet and some of the high-technology 
provisions where the Justice Department says they are simply 
trying to bring those into the modern age. If you listen to 
them talk about these sections--and I spent two hours with the 
Justice Department on pen registers yesterday--they say, for 
example, under pen registers they are only interested in the 
equivalent of a telephone dialed number. That is why there is a 
low standard; you get the digits.
    But on the Internet, those digits turn into content, the 
subject line, the ``to/from'' line, URLs, and possible Web-
browsing on the Internet. They say ``we don't intend that.'' I 
say, well, then why have you added this new language to the 
bill? We have to understand that language. They say ``but that 
is not our intent.'' But those people in that room may not be 
here four years from now.
    Viet Dinh, the leader of the Justice Department task force, 
said yesterday at the Internet caucus briefing, ``I do not 
believe in legislative history. It has to be on the plain face 
of the statute.'' So we have to read a plain text and 
understand what it means, and if you read the plain text, pen 
registers covers content. And I believe it needs to be, if we 
are going to deal with plain text, scaled back to only cover 
the IP address or the equivalent of dialed telephone numbers.
    In a multi-tap, roving wiretap, yes, you should put it 
under FISA, but it should be tied to a computer, if you are 
trying to get beyond phones, or any device which is under the 
control of the target. It shouldn't be any computer that that 
person may use. That is a sweeping authority.
    I also call your attention to a computer trespass section, 
105, which we did not pay attention to. It was the Senate 
Judiciary Committee who called our attention to it and said, do 
you want to read this again? We thought it was trespassing onto 
a computer service, unauthorized trespassing, to engage in 
delay of service and such things, where the ISP invites them on 
to do a surveillance.
    That is a narrow emergency circumstance which is justified 
where you turn over information which you would otherwise get a 
warrant for. They do not limit it that way. They say anyone who 
has unauthorized access to a computer, with the permission of 
the ISP, you can collect all of their e-mail, all of their 
communications, and so forth, on the Internet without going 
through ECPA, which is the Title III warrant requirement for 
the Internet.
    It is a major walk-around the statute that Senator Leahy 
drafted with others in 1986, which I also worked on. We have to 
put the language in that limits it to extreme circumstances or 
emergency circumstances. Otherwise, a business office owner--
the FBI says we suspect he is engaging in money laundering on 
his computer. Be my guest, take all their records, without 
requiring them to go down and get a Title III warrant for 
electronic mail which is private communications.
    The same could happen at AOL or Microsoft, where you go 
down and say there is an unauthorized use going down. Will you 
give us permission to use your network? The service provider 
says we will just say no. You are going to say no to the FBI? 
You are not going to say no to the FBI. And they are asking for 
civil damages immunity under this statute so that if they say 
yes at the wrong time, they won't be liable. But it will give 
our intelligence agencies too much authority.
    My final point, and I could go on and on. The issue is in 
many cases fine-tuning, but fine-tuning requires a negotiation. 
Fine-tuning requires getting experts to sit across a table and 
say let's translate what you are saying--you don't mean to do 
this--into the language of the statute. Unless that happens, we 
will have brought down the wall that exists that we built post-
Watergate, and I think we will rue the day that we did it. You 
cannot pass legislation like that and say you have balanced 
national security and civil liberties. You might as well say 
you have suspended them for a period of time and be honest 
about it.
    I don't think you on this ommittee want to do that. I think 
we can work with you. I am urging you to take the time to do 
it. Grover Norquist again said we can't find one restriction 
that impeded or caused or led to the disaster that befell us on 
September 11. Let us take another week and negotiate and 
discuss.
    Thank you very much.
    [The prepared statement of Mr. Berman follows:]

Statement of Jerry Berman, Executive Director, Center for Democracy and 
                      Technology, Washington, D.C.

    Thank you for the opportunity to testify at this hearing on the 
momentous question of improving our nation's defenses against terrorism 
in a manner consistent with our fundamental Constitutional liberties.
    CDT joins the nation in grief and anger over the devastating loss 
of life resulting from the September 11 terrorist hijackings and 
attacks against the World Trade Center and the Pentagon. Like many, our 
relatively small staff had friends and acquaintances killed in those 
heinous acts. We strongly support the efforts of our government to hold 
accountable those who direct and support such atrocities.
    We know from history, however, that measures hastily undertaken in 
times of peril--particularly measures that weaken controls on 
government exercise of coercive or intrusive powers--often infringe 
civil liberties without enhancing security. For that reason, we harbor 
serious reservations about several bills currently under discussion in 
this Subcommittee and elsewhere on Capitol Hill. In particular, we are 
deeply concerned about the Administration's proposed ``Anti-Terrorism 
Act of 2001'' (ATA). A recently-circulated alternate package, the 
Conyers-Sensenbrenner ``Provide Appropriate Tools Required to Intercept 
and Obstruct Terrorism (PATRIOT) Act,'' removes or changes a very few 
concerns in ATA, but retains most of the provisions damaging to civil 
liberties. The concerns we raise in this testimony, unless otherwise 
noted, apply equally to both bills.
    We are deeply concerned about the impact of these bills on 
constitutional liberties, most particularly in two areas.
    First, the ATA and PATRIOT Act tear down the ``wall'' between the 
government's authority to conduct counter-intelligence surveillance 
against foreign powers and terrorist groups, and its authority to 
conduct criminal investigations of Americans. In the post-Watergate 
era, Congress carefully constrained the government from inappropriately 
mixing its foreign intelligence and law enforcement capabilities, since 
such mixing would greatly infringe Americans' constitutional freedoms. 
The current bills eviscerate that division. Both would change the 
``primary purpose'' standard that permits exceptional surveillance but 
only when counter-intelligence is ``the'' primary purpose of an 
investigation. Instead, the bills would make these extraordinary powers 
open to all investigations in which counter-intelligence is ``a'' (or, 
in the PATRIOT Act, ``a significant'') purpose (Sec. 153). As a result, 
they would permit law enforcement to use constitutionally suspect 
surveillance techniques--secret searches, bugs, and wiretapping--
against Americans in criminal investigations without the protections 
that Congress originally intended. Besides damaging the civil liberties 
of law-abiding Americans who may have their communications subjected to 
secret interception, the bill raises the possibility that criminal 
prosecutions pursued in this way could be thrown out on constitutional 
grounds.
    At the same time, the ATA and PATRIOT Act allow data collected in a 
criminal investigation to be shared widely, without judicial review and 
regardless of whether those activities serve a law enforcement or 
counter-intelligence purpose (Sec. 154). This would include the content 
of Title III wiretaps and evidence presented to grand juries, both of 
which are traditionally protected under law. Such a revision to the law 
would permit such troubling activities as the development by the CIA or 
other intelligence agencies of dossiers for Americans not suspected of 
any criminal activity.
    Second, the ATA and PATRIOT Act broadly expand the government's 
ability to conduct electronic surveillance and diminish the rights of 
Americans online. The most problematic sections in this regard are:
     Section 101. Pen Register and Trap and Trace Authority. 
Both ATA and PATRIOT would extend to the Internet the current, 
extremely permissive authority to collect telephone numbers dialed to 
or from a specific telephone line. But as drafted for Internet, this 
proposal would provide the government with much more detailed 
information about a monitored user. It would include not only e-mail 
addresses, but also URLs detailing activities such as search queries, 
books browsed, and online purchases. Those monitored do not need to be 
under investigation, and judges must issue these orders upon a showing 
of mere relevance, not probable cause.
     Section 106. Interception of Computer Trespasser 
Communications. Both ATA and the PATRIOT Act (Sec. 105) say that anyone 
accessing a computer ``without authorization'' has no privacy rights 
and can be tapped by the government without a court order, if the 
operator of the computer system agrees. This provision eviscerates 
current protections for electronic communications. Relatively minor 
violations of an ISP's terms of service--such as using foul language or 
downloading a copyrighted MP3 file--would allow an ISP to turn over all 
of that person's communications.
    A range of other provisions further expand the government's 
surveillance authority, including:
     Section 152. Multi-Point Wiretap Authority. Authorizes 
FISA ``roving'' wiretaps, but without necessary guidelines or 
restrictions on this constitutionally-suspect authority. Thus, if a 
surveillance target is suspected of using a library computer, then all 
communications from that library computer might be monitored.
     Section 155. Pen Register/Trap and Trace Controls. 
Eliminates the only meaningful statutory control that exists on use of 
pen registers and trap and trace devices in intelligence cases.
     Section 154. Foreign Intelligence Information Sharing. 
Permits distribution of information gathered in criminal 
investigations--including grand jury information and Title III 
wiretaps--to a huge number of government employees not involved in law 
enforcement.
     Section 156. Business records. Allows access to any 
business records upon the demand of an FBI agent for intelligence or 
terrorism investigations with no judicial review or oversight.
     Section 157. Miscellaneous national-security authorities. 
Amends several key privacy laws, allowing much greater access to 
banking, credit, and other consumer records in counter-intelligence 
investigations, with no judicial review.
    Mr. Chairman, we commend you and the Subcommittee for holding this 
hearing, and taking the time to consider the legislative proposals put 
forth by the Administration. Only through the hearing process can you 
and the American public understand what is being proposed, how it would 
change current law, and whether the changes are responsive to any 
deficiencies that the September 11 attack may have revealed. Just as 
President Bush and his military advisers are taking their time in 
planning their response, to ensure that they hit the terrorist targets 
with a minimum of collateral damage, so it is incumbent upon this 
Congress to avoid collateral damage to the Constitution.
    The Center for Democracy and Technology is a non-profit, public 
interest organization dedicated to promoting civil liberties and 
democratic values for the new digital communications media. Our core 
goals include enhancing privacy protections and preserving the open 
architecture of the Internet. Among other activities, CDT coordinates 
the Digital Privacy and Security Working Group (DPSWG), a forum for 
more than 50 computer, communications, and public interest 
organizations, companies and associations working on information 
privacy and security issues.
    Context: Law Enforcement and Intelligence Gathering Authorities
    As you well know, the current legal structure of the intelligence 
community was established after Watergate both to improve intelligence 
and to ensure that the rights of Americans were not eroded by the vast 
and sometimes vague intelligence authorities that had previously 
existed. The legal and oversight system for intelligence sprang not 
just from a concern about civil liberties, but also from a concern 
about improving the efficacy of intelligence gathering.
    A number of the provisions of the Attorney General's bill would 
change provisions of the Foreign Intelligence Surveillance Act of 1978 
(FISA). As the Subcommittee is well aware, FISA gave the FBI and the 
CIA extremely broad authority to investigate terrorism and to conduct 
counter-intelligence not only against foreign nationals here in the 
U.S., but also against American citizens suspected of involvement with 
terrorist groups. Unlike criminal law, where high standards of 
government conduct vigorously protect constitutional rights, FISA makes 
a special exemption for the intelligence community, permitting it to 
place wiretaps, install bugs, and conduct secret searches without 
showing probable cause of criminal conduct, giving notice, or even 
turning the results of the surveillance over to a court for later 
review. Through FISA, our intelligence community has authority to 
investigate a sweeping array of individuals and organizations, and 
through such investigations to defend against acts of terrorism.
    Congress designed the FISA statute to be effective, but it 
recognized that such broad investigative powers, if misapplied, could 
threaten Americans' constitutional rights. Congress therefore demanded 
that the powers bestowed by FISA be strongly contained, and that a 
clear separation--a wall--be erected between the unique and broad 
standards for surveillance described in FISA, and those used in the 
rest of the criminal justice system. In particular, Congress wanted to 
ensure that surveillance under FISA would not be initiated for the 
purpose of criminal investigations, since such would circumvent the 
careful protections built into the criminal system. Rules were 
installed that carefully constrained FISA's usage, and the ``wall'' 
precluded information collected through FISA investigations from being 
used in criminal ones except in cases where the surveillance was 
initiated and maintained for broader foreign intelligence purposes.
                  Comments on Administration Proposals
    The ATA and the PATRIOT Act would expand already-broad federal 
government authorities to conduct electronic surveillance and otherwise 
collect information not only on foreign nationals but on American 
citizens, while sidestepping constitutional protections. As described 
above, the bills do not adequately control that expansion, and as a 
result they damage civil liberties in two ways.
    Both bills would change the ``primary purpose'' standard that 
permits FISA's exceptional standards to be used only when counter-
intelligence is ``the'' primary purpose of an investigation. Instead, 
the ATA and PATRIOT Act propose to open FISA to all investigations in 
which counter-intelligence is ``a'' (or, in the PATRIOT Act, ``a 
significant'') purpose (Sec. 153). Such a change clearly threatens the 
``wall'' Congress erected between the government's normal police 
authority and its special counter-intelligence powers, with the end 
result of substantially reducing American's constitutional protections 
before the government. The ATA and PATRIOT Act would thus permit law 
enforcement to use constitutionally suspect surveillance techniques--
secret searches, bugs, and wiretapping--against Americans in criminal 
investigations without the protections that Congress originally 
intended. Besides damaging the civil liberties of law-abiding Americans 
who may have their communications subjected to secret interception, the 
bill raises the possibility that criminal prosecutions pursued using 
FISA could be thrown out on constitutional grounds.
    At the same time, the ATA and PATRIOT Act allow data collected in a 
criminal investigation to be shared widely and used for any number of 
activities, without judicial review and regardless of whether those 
activities serve a law enforcement or counter-intelligence purpose 
(Sec. 154). Information that could be shared would include the content 
of Title III wiretaps and evidence presented to grand juries, both of 
which are traditionally protected under law. Certainly, the 
government's law enforcement and intelligence communities should be 
encouraged to work together, but the terms of their cooperation should 
be carefully defined, with, standards that serve the dual purposes of 
national security and civil liberties.
    Such a lack of controls on the government's ability to share and 
distribute information about American citizens--no matter the purpose 
for which it was collected--leads to a situation in which entire 
communities (such as the American Islamic community) might have a 
surveillance net cast over them by the government's counter-
intelligence arm. It leads to the possibility that American citizens 
disagreeing with the policies of a sitting Administration would have 
their activities monitored and logged, and dossiers created for them at 
the CIA or FBI. And it creates the risk that, in our desire for a 
nation as secure in the future as it has been in the past, we might 
sacrifice the elements of freedom that made this country as strong as 
it is.
    Even as the ATA and PATRIOT Act alter the division between FISA and 
the government's normal police powers, they also include numerous, 
complex provisions extending the surveillance laws, particularly 
regarding the Internet, even as both bills raise many questions about 
how such provisions will be implemented. Many of the changes are not 
related to security concerns raised by the September 11 terrorist 
attacks. Many are not limited to terrorism cases, but relate to 
criminal investigations. Some have been proposed by the Justice 
Department before, and some have been rejected by Congressional 
committees before, based on their breadth and their impact on liberty.
    The proposed language includes sweeping revisions such as a 
modification of the pen register standard that would allow the 
government to intercept the content of some Internet communications 
without any fourth amendment protection (Sec. 101) and a new authority 
for Internet Service Providers (ISPs) to authorize government 
surveillance of their users' Internet connections (Sec. 106 in ATA, 
Sec. 105 in PATRIOT Act). Other changes include the so-called ``roving 
wiretap'' authority (Sec. 152), which would permit the government to 
intercept, for example, all Internet communications coming from a 
public Internet terminal (no matter who is using it) if a suspected 
terrorist is seen using that terminal.
    As technology develops, so too should the government's ability to 
carry out its law enforcement and counter-terrorism functions. But 
injudicious changes such as those proposed in the ATA and the PATRIOT 
Act threaten basic freedoms guaranteed by the constitution. We 
therefore urge this Subcommittee and the law enforcement and 
intelligence communities to take a more limited, surgical approach to 
expanding government powers, both online and off.
    A more detailed analysis of the Administration's bill follows 
below. Once again, we appreciate and commend this Subcommittee's 
efforts to gather public input and to hold this hearing today. We hope 
the Subcommittee will move forward with those provisions of its bill 
and the Administration's bill that are non-controversial and responsive 
to the tragic attacks of September 11, but will defer on the other more 
complex and divisive provisions that we have identified. We look 
forward to working with the Subcommittee and staff to craft an 
appropriate response at this perilous moment in our country's history, 
and to avoid a rush to judgment on legislation that could ultimately 
imperil both freedom and security.
                Extended Analysis of Administration Bill
    The Administration's bill has two kinds of provisions that give 
rise to concerns: those that would lower the standards for government 
surveillance and those that address the difficult question of 
information sharing.
    In terms of collection standards, our law enforcement and 
intelligence agencies already have broad authority to monitor all kinds 
of communications, including email. Both the criminal wiretap statute 
and the Foreign Intelligence Surveillance Act already cover terrorism. 
For some time, it has been recognized that those standards need to 
strengthen the standards for government surveillance. We see no 
justification for the changes proposed in the Administration bill that 
weaken those standards. We are particularly opposed to changes that 
would eliminate the judicial review that can be the most important 
protection against abuse.
    The Foreign Intelligence Surveillance Act allows the FBI to conduct 
electronic surveillance and secret physical searches in the US, 
including surveillance of US citizens, in international terrorism 
investigations. FISA also authorizes court orders for access to certain 
business records. As you know, the standards under FISA are much lower 
than the standards for criminal wiretaps, and in return, the 
surveillance is supposed to be focused on the collection of 
intelligence, not criminal evidence. The FISA court, which last year 
approved more than 1000 surveillance requests, has denied only one 
request in its 22 year history.
    Distinct from the Administration's unsupportable desire to avoid 
judicial controls on its authority, perhaps the central and most 
important problem facing the Congress is the question of information 
sharing. For many years, this has been recognized as a very difficult 
question; it is one that will be especially difficult to resolve 
satisfactorily given the pressure-cooker atmosphere of this time. We 
want to work out a balanced solution. But it cannot be done by wiping 
away all rules and barriers. Any solution needs to preserve the 
fundamental proposition that the CIA and other intelligence agencies 
should not collect information on US citizens in the US.
     Section 101. Modification of Authorities relating to Pen 
Registers and Trap and Trace Devices
    Expands, in vague and potentially broad terms, the government's 
ability to get information about Internet communications under a loose 
standard. Also allows any magistrate in the country to issue a pen 
register or trap and trace order that can be served multiple times, 
anywhere in the country.--The government claims that it already has 
authority to collect, under the very weak provisions of the pen 
register and trap and trace statute, transactional data about Internet 
communications. But the existing statute, intended to collect telephone 
numbers, is vague as applied to the Internet. Section 101 compounds the 
vagueness. It would add the words ``addressing'' and ``routing'' to the 
description of what pen registers and trap and trace devices collect. 
What do these words mean?
    We are concerned that the provision would be cited as expanding the 
scope of what the government collects, creating a more intrusive form 
of surveillance. Internet addressing information can be much more 
revealing than phone numbers and might include information about the 
content of communications; a URL, for example, which may fit the 
proposed statutory definition of ``addressing'' information, may 
include a specific search term entered into a search engine or the 
title of a specific book bought at Amazon.com. The bill provides no 
details on how this content would be separated from other addressing 
information. This provision is constitutionally suspect as it could 
allow government access to content information with minimal judicial 
oversight, specifically prohibited in a recent DC Circuit Court ruling. 
(See USTA v. FCC.)
    The standard for pen registers is so low as to be meaningless: 
people whose communications are targeted need not be suspected of any 
crime; probable cause is not required, only mere ``relevance'' to some 
ongoing investigation; courts have no authority to review these orders. 
Before extending nationwide scope to these orders, the process for 
their approval needs to be given some meaningful judicial approval. 
Congress now should use the language approved by the House Judiciary 
Committee last year in H.R. 5018.
     Section 103. Authorized Disclosure
    Allows disclosure of information obtained from wiretaps with any 
executive branch official. This is clearly too broad, especially in 
light of the vague language in 18 USC 2517 that allows sharing when 
appropriate to the proper performance of the duties of the official 
making or receiving the disclosure. The issue of greatest concern to us 
is that the CIA and other intelligence agencies would begin compiling 
files on US persons. This provision should be narrowed, so that it 
authorizes disclosures to personnel with intelligence, protective, 
public health or safety, or immigration duties, to the extent that such 
disclosure is related to proper performance of the official duties of 
the officer receiving the disclosure, and with the proviso that nothing 
therein authorizes any change in the existing authorities of any 
intelligence agency. (Rather than amending the definition section of 
Title III, it might be better to build these concepts directly into 
section 2517.)
     Section 105. Use of Wiretap Information from Foreign 
Governments. (Deleted from PATRIOT Act)
    Allows use of surveillance information from foreign governments, 
even if it was seized in a manner that would have violated the Fourth 
Amendment. Section 105 makes surveillance information collected about 
Americans by foreign governments (so long as U.S. officials did not 
participate in the interception) admissible in U.S. courts even if such 
interceptions would have been illegal in the U.S. Such a provision is 
ripe for abuse and provides unhealthy incentives for more widespread 
foreign surveillance of U.S. individuals; we commend its removal from 
the PATRIOT Act.
     Section 106. Interception of Computer Trespasser 
Communications
    Allows ISPs to waive their customers privacy rights and permit 
government monitoring whenever customer violates terms of service. This 
provision says that a person accessing a computer system without 
authorization has no privacy rights. If an ISP's terms of service 
prohibited use of the Internet account for illegal purposes, then the 
ISP could authorize government monitoring whenever the ISP was told by 
the government that a customer might be doing something illegal. If a 
customer was suspected, for example, of downloading music that was 
copyrighted, the ISP could ask the government to monitor all the 
person's Web activities. This proposal would swallow the entire wiretap 
statute as applied to the Internet, relieving the government of ever 
having to get court approval to read e-mail.
     Section 151. Period of Orders of Electronic Surveillance 
of Non-United States Persons Under Foreign Intelligence Surveillance.
    Allows secret searches and electronic surveillance for up to one 
year without judicial supervision. Under current law, the FISA Court 
can order a wiretap of a ``non-US person'' for a period of 90 days, 
after which the government must report to the court on the progress of 
the surveillance and justify the need for further surveillance. The 
court can authorize physical searches for up to 45 days. The amendment 
would extend both time frames to one year, meaning that after the 
government's initial ex parte showing there would be no judicial review 
for one year. We think this is too long. We recommend that the current 
time frames be retained for the initial approval. (After all, they are 
already far longer than the 30 days for which criminal wiretaps, 
including criminal wiretaps in terrorism cases, can be approved.) If, 
after 90--days of electronic surveillance or 45 days of physical 
searches, the government can show a continuing justification for the 
surveillance or search authority, then we would agree that the court 
could authorize a longer surveillance. We would recommend one year for 
electronic surveillance, 180 days for physical searches (thus 
preserving the current law's recognition that physical searches are 
more problematic than electronic searches and need to be authorized for 
shorter periods of time).
     Section 152 Multi-Point Authority.
    Allows roving taps, including against US citizens, in foreign 
intelligence cases with no limits--ignoring the Constitution's 
requirement that the place to be searched must be ``particularly 
described.'' This section purports to afford the FBI ``roving tap'' 
authority for intelligence investigations similar to what already 
exists for criminal investigations. See 18 USC 2518(11). A roving tap 
allows the government to intercept whatever phone or email account a 
suspect uses, even if the government cannot specify it in advance. 
Roving tap authority is constitutionally suspect, at best, since it 
runs counter to the Fourth Amendment's requirement that any search 
order ``particularly describe the place to be searched.'' However, the 
proposed language places no limitation on the exercise of the roving 
tap authority and offers the FBI no guidance for its exercise. The 
proposed change merely authorizes the court to issue to any ``person'' 
an order commanding them to cooperate with a surveillance request by 
the government. If roving tap authority is supposed to focus on the 
targeted person, not on the telephone instrument, then the intercept 
authority should be limited to the target--it should only allow 
interception of communications to which the target of the surveillance 
is a party. Such limitations are absent from this proposal.
     Section 153. Foreign Intelligence Information
    Allows the FBI to collect evidence for criminal cases under the 
looser standards of foreign intelligence investigations--an end-run 
around the relatively stringent requirements for wiretaps in Title III. 
This section, which merely changes the word ``the'' to ``a,'' would 
actually make a fundamental change in the structure of the wiretap 
laws. It would permit the government to use the more lenient FISA 
procedures in criminal investigations which have any counter-
intelligence purposes and would destroy the distinctions which 
justified granting different standards under FISA in the first place. 
Under existing law, FISA can be used only if foreign intelligence 
gathering is ``the'' purpose of the surveillance. The proposed 
provision would permit FISA's use if this is ``a'' purpose, even if the 
primary purpose was to gather evidence for a criminal prosecution. This 
is an extraordinary change in the law which has no justification.
     Section 154. Foreign Intelligence Information Sharing
    With no standards, permits the sharing of grand jury information, 
Title III wiretap information, and any other ``foreign intelligence 
information'' acquired in a criminal case with many different federal 
officials not involved in law enforcement. This is a sweeping change in 
the law. ``Foreign intelligence information'' is not defined. The 
provision places no limits on the purpose for which the information may 
be shared, and no limit on its reuse or redisclosure. It requires no 
showing of need and includes no standard of supervisory review or 
approval. As written, a criminal investigator could share with White 
House staff information collected about foreign policy critics of the 
Administration. The provision, at the very least, should be drastically 
curtailed.
     Section 155. Pen Register and Trap and Trace Authority
    Eliminates the only meaningful statutory control that exists on use 
of pen register and trap and trace devices in intelligence cases. The 
law currently requires a showing that the person being surveilled is a 
foreign power, an agent of a foreign power or an individual engaged in 
international terrorism or clandestine intelligence activities. This 
amendment would eliminate that standard and permit the use of FISA for 
pen registers whenever the government claimed that it was relevant to 
an ongoing intelligence investigation. Contrary to the DOJ's assertion 
in its section-by-section, this is not the same as the standard for pen 
registers in criminal cases. There, the surveillance must be relevant 
to an ongoing criminal investigation, which is moored to the criminal 
law. There is no similar constraint on foreign intelligence 
investigations, since they can be opened in the absence of any 
suspicion of criminal conduct. This provision ignores the fact that the 
government was granted the special rules of FISA only for situations 
that involved intelligence gathering about foreign powers.
     Section 156. Business records
    Allows access to any business records upon the demand of an FBI 
agent, with no judicial review or oversight. Traditionally, the FBI had 
no ability to compel disclosure of information in intelligence 
investigations. The compulsory authorities were limited to criminal 
cases, where the open, adversarial nature of the system offered 
protections against abuse. For example, in criminal cases, including 
international terrorism cases, the FBI can obtain grand jury subpoenas, 
under the supervision of the prosecutor and the court, where the 
information is relevant to a criminal investigation. The FBI has no 
ability to invoke the power of the grand jury in intelligence 
investigations, since those investigations are conducted without regard 
to any suspicion of criminal activity. In 1998, in an expansion of 
intelligence powers, FISA was amended to give the FBI a new means to 
compel disclosure of records from airlines, bus companies, car rental 
companies and hotels: Congress created a procedure allowing the FBI to 
go to any FISA judge or to a magistrate. The FBI had only to specify 
that the records sought were for a foreign intelligence or 
international terrorism investigation and that there were specific and 
articulable facts giving reason to believe that the person to whom the 
records pertain is an agent of a foreign power. This is not a 
burdensome procedure, but it brought the compulsory process under some 
judicial control. The Administration's bill would repeal the 1998 
changes and permit the use of ``administrative subpoenas'' rather than 
an application to a court to get any business records under FISA. An 
administrative subpoena is a piece of paper signed by an FBI agent. 
There is no judicial review, no standard of justification, no 
oversight. Particularly in intelligence investigations, which are not 
even limited by the scope of the criminal law and in which there is no 
involvement of the US Attorney's Office, FBI agents should not have 
such unreviewable discretion to compel disclosure of personal 
information.
     Sec. 157. Miscellaneous national-security authorities
    Allows much greater access to banking, credit, and other consumer 
records in counter-intelligence investigations. Current provisions of 
law allow the federal government to obtain sensitive banking, credit, 
and other consumer records under the relaxed and secretive oversight of 
FISA--but only when there are ``specific and articulable'' facts 
showing that the target consumer is ``a foreign power or the agent of a 
foreign power.'' Section 157 would eliminate these essential 
requirement, mandating disclosure of this sensitive consumer data 
simply if an FBI official certifies that they are needed for a 
counterintelligence investigation (and with an ex parte court order for 
access to credit reports). Section 157 would eliminate the ``agent of a 
foreign power'' standard in-
         The Fair Credit Reporting Act, allowing access to 
        records from consumer reporting agencies (including the names 
        of all financial institutions where accounts are held, all past 
        addresses and employers, and credit reports);
         the Financial Right to Privacy Act, broadly allowing 
        access to financial records; and
         the Electronic Communications Privacy Act, allowing 
        access to telephone and toll billing records, and, newly added, 
        all ``electronic communication transactional records.''
    As such, the Section would greatly increase access to the personal 
information of consumers or groups who are not agents of foreign 
powers. And in each case access the institutions granting access to 
consumer information would be prohibited from disclosing that 
information or records had been obtained.
     Section 158. Disclosure of educational records
    Amends the law protecting education records to permit access to 
them. While this might be justified in terrorism cases, the provision 
covers all cases involving ``national security'' and is far too 
sweeping.
     Section 159. Presidential Authority.
    Does not appear to permit judicial challenge to seizure of 
property. At the very least, there must be such opportunity. A second 
provision allows the use of secret evidence. Use of such evidence, if 
ever permitted, must be on a much higher standard than that the 
information is properly classified, as provided here. The government 
must be required to persuade a court that the disclosure to the party 
would result in imminent and serious harm and the court must require 
the government to provide sanitized information to the party.
     Section 352. Notice. Deleted from the PATRIOT Act.
    Allows secret searches of homes and offices. For any warrant or 
court order to search or seize property relating to a federal criminal 
offense, notice of the search or seizure could be delayed if it could 
interfere with lawful investigations. Notice is a bedrock Fourth 
Amendment protection from mistaken or abusive searches and seizures. 
Delayed notice has been allowed in only the most extraordinary 
circumstances, such as wiretapping, and only with substantial judicial 
supervision. Section 352 represents a major erosion of this key Fourth 
Amendment requirement of notice.

    Chairman Feingold. Thank you very much, Mr. Berman.
    We will now hear from Dean Douglas Kmiec, of the Columbus 
School of Law at the Catholic University of America. In 
addition to his extensive academic qualifications as a 
constitutional law scholar, Dean Kmiec served as head of the 
Office of Legal Counsel in the Department of Justice from 1985 
through 1989.
    Dean, thank you for coming and you may proceed.

    STATEMENT OF DOUGLAS W. KMIEC, DEAN AND ST. THOMAS MORE 
 PROFESSOR OF LAW, COLUMBUS SCHOOL OF LAW, CATHOLIC UNIVERSITY 
                  OF AMERICA, WASHINGTON, D.C.

    Mr. Kmiec. Thank you, Senator. I appreciate your including 
my entire statement in the record. It is a privilege to be here 
to address this important subject.
    The events of September 11, I believe, are ever-present in 
the minds of American citizens. For thousands of families, a 
husband, wife or child will never return home again because of 
what happened on that day, and I think it is very important for 
this committee to remember exactly what did happen on that day. 
It wasn't a political rally, it wasn't a non-violent speech 
protest, it wasn't an example of urban street crime. It wasn't 
even an attack by another sovereign state or nation upon the 
United States. It was the deliberate murder of innocent men and 
women, not for high political purpose or even low political 
purpose, but simply as the random manifestation of hate.
    We talked about hate before here this morning, but I think 
we have to remember that that is what this was, a random 
manifestation of hate intended to spread panic and to fracture 
the civil order and continuation of American society.
    But you and I know, Mr. Chairman, that Americans don't 
fracture that easily. We may be grievously wounded and we do 
earnestly want justice, and we want justice to be achieved in a 
rational, humane way. And our President has told us that those 
who perpetrated the events of September 11 will be held to 
account. Now, the question is how will they be held to account?
    There is some prospect that they will be held to account, 
as Blackstone anticipated, as the enemies of mankind on the 
field of battle. There is also some possibility that they may 
be tried in a U.S. District Court. But there is yet a third 
possibility, one that this Nation knows from trying Nazi 
saboteurs in World War II and hundreds of trials in the context 
of the Civil War, and that is apprehending these enemies of 
mankind and presenting the evidence before a duly-constituted 
military tribunal. That also changes the character and 
perspective of what we are analyzing here today.
    Freedom: the Founders had a very important conception of 
freedom. It wasn't just freedom to do anything or to associate 
for any purpose, but to do those things which do not harm 
others, and which, it was hoped, would advance the common good. 
Freedom separated from truth is not freedom at all, but 
license, and Congress can no longer afford, if it ever could, 
to confuse freedom and license because doing so licenses not 
freedom, but terrorism.
    Now, I respectfully suggest that many of the objections 
that have been raised against this legislation are raised by 
people who have a much different conception of freedom than our 
Founders possessed, far more radical in nature, far more 
autonomous in nature, and also unfortunately a far less 
realistic assessment of the threat that is now presented to the 
United States.
    In my judgment, Mr. Chairman, this is important 
legislation. It does have to be carefully drafted. I think it 
is being carefully drafted, and I appreciate the time this 
committee is spending on overseeing it. But let's remember that 
the Constitution is to preserve a more perfect Union, and quite 
frankly this Congress has already given the President of the 
United States a joint resolution that authorizes him not only 
to respond to the events of September 11, but also to any 
future act of terrorism.
    This legislation is not unrelated to what the President 
needs to do. We are all concerned that the response to the 
events of September 11 be proportionate, be targeted, be 
effective in actually striking not at innocents, as the attack 
was on America, but at those who actually perpetrated these 
terrorist acts. In order to accomplish that, commission after 
commission have recommended a greater sharing of information 
between law enforcement and intelligence agencies.
    There are no serious constitutional obstacles to either 
updating law enforcement authorities to make them consistent 
with the technology that presently exists or to update law 
enforcement authority to make terrorism at least on par with 
the prosecution and pursuit of drug criminals and organized 
crime. That is what this legislation is about.
    I humbly suggest that the objections that have been raised, 
as Senator Hatch suggested, are not objections about 
constitutional law as much as constitutional policy. I think if 
you carefully look at some of the sections, and I know we will 
in the context of questioning, when we are asking for the 
extension of pen register information which is not protected by 
the Fourth Amendment, to include the Internet, we are not 
violating the Constitution, but providing a necessary tool to 
track down terrorism.
    When we are authorizing a FISA warrant where there is an 
intelligence purpose, we are, as Professor McGinnis has already 
affirmed, acknowledging the context in which our civil 
liberties are threatened. We are not disregarding the 
Constitution or judicial process. FISA builds that in. It is 
the Congress and the President acting together, and in the 
context of foreign affairs and foreign policy, power is then at 
its zenith, as the Supreme Court has said, to address questions 
of this nature.
    To expand the definition of terrorism in the context of 
immigration to include those who materially assist or associate 
in a knowing way, not an accidental way, not an innocent way, 
not for purposes of non-violent communication, but to knowingly 
assist terrorist activity, is not to violate the Constitution.
    I know these specifics, again, will be looked at in the 
context of questions, so let me just end with this. I am proud 
of America in so many ways, including for this hearing. The 
fact that we live in a society where civil libertarian 
objection can be raised and discussed, not with hatred, not 
with violence, but with reason, is a testimony to the type of 
country we are. But let us not take that for granted. Prudence 
requires that we act, and act now, so that our law enforcement 
and military capacities can find the culprits who murdered so 
many innocent American citizens on September 11.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Kmiec follows:]

   Statement of Dean Douglas W. Kmiec,\1\ Professor of Law, Columbus 
    School of Law, Catholic University of America, Washington, D.C.

    Mr. Chairman. I am the Dean of the Law School of The Catholic 
University of America in Washington, D.C. As the former head of the 
Office of Legal Counsel in the U.S. Department of Justice in the Reagan 
administration, it was my duty to handle legal issues pertaining to 
national security and foreign intelligence, as well as to advise the 
President on constitutional questions brought under virtually any part 
of the U.S. Code.
---------------------------------------------------------------------------
    \1\ Dean Douglas W. Kmiec, and St. Thomas More Professor of Law, 
Columbus School of Law, Catholic University of America, Washington, 
D.C.
---------------------------------------------------------------------------
    The events of September 11 remain ever-present in the minds of 
American citizens. For thousands of families, a husband or wife or 
child will never return home because of what happened that day. The 
diabolical events of that morning will be forever etched in our 
consciousness. And yet, along with those mental pictures, it is 
important to grasp fully what happened: it wasn't a political rally; it 
wasn't a nonviolent speech protest; it wasn't an example of urban 
street crime; and it wasn't even an attack by another sovereign state 
or nation, it was the deliberate murder of innocent men and women, not 
for high political purpose or cause--or even a base one--but simply the 
random manifestation of hate intended to spread panic and fracture the 
civil order and continuation of American society.
    But as grievously wounded as we may be, American society and its 
principled understanding of freedom with responsibility does not 
fracture or panic that easily, but it does expect that justice will be 
done. It earnestly desires, along with our President, to see those who 
so mercilessly took sacred human life to be held to account--not in a 
local criminal court, but by the able men and women of the military and 
our law enforcement communities, working together, either to eliminate 
on a field of battle these ``enemies of mankind,'' as Blackstone called 
them, or to apprehend and punish them--presumably before the bar of a 
properly convened military tribunal like those employed against Nazi 
saboteurs in World War II.
    In considering this legislation it is useful to remember that our 
founder's conception of freedom was not a freedom to do anything or 
associate for any purpose, but to do those things which do not harm 
others and which, it was hoped, would advance the common good. Freedom 
separated from this truth is not freedom at all, but license. Congress 
can no longer afford, if it ever could, to confuse freedom and 
license--because doing so licenses terrorism, not freedom. Those 
opposing the Anti-Terrorism Act of 2001 submitted to you by the 
Attorney General seem to have both a more radical view of freedom and a 
less sober view of the threats we face. For example, before the 1996 
Anti-terrorism Act was passed, some of the opponents to this 
legislation claimed that terrorist threat was not particularly imminent 
and that existing investigative and protective authorities were 
adequate. ``The U.S. has not been a fertile breeding ground for 
terrorism,'' opined Mr. James X. Dempsey & Professor David Cole in 
Terrorism & The Constitution 147 (1999), and further that ``relatively 
modest, overt, non-discriminatory measures, such as metal detectors at 
airports protect airlines from attack.'' Dempsey & Cole, Terrorism & 
The Constitution at 153 (June 1999)]. Today, these same objectors say 
the existing law is just fine.
    With due respect, such complacency hides a basic confusion or 
under-appreciation for the war against terrorism that now must be 
fought. The objectors think of the mass destruction of the World Trade 
Center and the Pentagon as the equivalent of ``[m]urder, kidnapping or 
bank robbery.'' [Dempsey & Cole, supra at 159]. They think the point is 
a criminal trial; it is not--it is the elimination of terrorism.
    The primary authority for dealing with terrorist threat resides 
both in the President as commander in chief, and this Congress, as the 
architect of various specific legal authorities, under the 
Constitution, to meet that threat. The President has courageously told 
the nations of the world that all are either for the United States in 
this, or with the terrorists. There is no middle ground. Similarly, the 
Congress by joint resolution has given President Bush authority not 
only to act against those wealthy and bloody hands that orchestrated 
the events of September 11, but all cooperators in those cowardly 
actions or ``any future act'' of international terrorism.
    The President has not been rash in the use of our military might, 
even as he has made unmistakably plain that the ``hour is coming when 
America will act.'' However, for that hour to come; for the 
proportionate application of our military might to become successfully 
manifest, this Congress must equip our law enforcement and intelligence 
communities with adequate and constitutional legal authority to address 
a war crime on a scale that previously was not seen in this generation, 
or seen ever, in peace time.
    The Attorney General has put before you, in the form of the Anti-
Terrorism Act of 2001 just such a piece of legislation. While it is 
still in draft form, I believe the provisions discussed herein, are 
fully constitutional and merit your approval. In drafting this 
legislative proposal, the Attorney General has given due regard to the 
necessary balance between the civil liberties enjoyed by our citizens 
under the Constitution and the law enforcement authority needed to both 
meet the employ of modern and global communication in terrorist 
plotting and the terrorist support activities of those non-citizens who 
come to our shores, as our guests, but who nevertheless wish to kill 
us.
    While I suppose it is possible for some of our objecting witnesses 
to be right about their constitutional questions even as their 
appraisal of terrorist threat was so astoundingly wrong, it is only 
fair for this body to understand--in seeking to balance security with 
freedom--that the witnesses opposing the legislation do so on 
constitutional policy, not constitutional law, grounds. And it is 
further important to know that the policy of the opposing witnesses is 
framed by the belief that, to quote them, ``there are a number of 
reasons to be skeptical about the claim that terrorists or their 
weapons have changed qualitatively. . . .'' [Dempsey & Cole, supra at 
152]. Regrettably, that cannot no longer be said to a stunned world 
community that has never before witnessed the inhumanity of using 
hundreds of innocents in a commercial airplane to kill thousands of 
other innocent noncombatants.
    As you know, the legislation before you has two fundamental 
purposes: to subject terrorism to the same rigorous treatment as 
organized crime and the drug trade and to supply up-to-date law 
enforcement capabilities to address the technology of the day which no 
longer observes some of the lines previously drawn in statute. The 
proposed legislation is complex and proceeds in 5 parts or titles. I 
will not address each title or section, but will highlight some of 
importance and others to rebut arguments raising putative 
constitutional shortcomings.
    In Title I dealing with intelligence gathering, section 101 is a 
needed change reflecting that in gathering intelligence, 
telecommunications is a national enterprise, not a local one, and it 
now includes the Internet as well as various telephonic services. Under 
court supervision, this section authorizes the installation of devices 
(pen registers/trap and trace) anywhere in the United States. 
Terrorists do not stop at state lines, and the ability of law 
enforcement to obtain such information from any person or entity 
supplying wire or electronic communications service is a practical 
necessity. Section 101 uses technologically neutral language 
(``routing, addressing'') make it clear that it applies to all 
technology that is presently known, including the Internet. Basically, 
this section authorizes the disclosure of telephone numbers dialed or 
their equivalent. It poses no constitutional issue, as courts have held 
that pen register/trap and trace information is not subject to 
constitutional protection, Smith v. Maryland, 442 U.S. 735 (1979) and 
some case law has already been extending existing authority to email. 
Beyond this, the legislative proposal is explicit that the content of 
the communications are not included.
    Section 103 of the legislation facilitates the disclosure of so-
called Title III wiretap information to the intelligence community. 
This directly implements numerous commission recommendations that law 
enforcement and intelligence personnel eliminate artificial lines 
separating them in the context of a terrorism investigation. Presently, 
18 U.S.C. 2517(1) allows any wiretap information to be shared if it 
assists another criminal investigation. The universe of individuals 
authorized to receive wiretap information under the proposal is larger 
than that, but is rationally limited to law enforcement, intelligence, 
national security, national defense, protective, and immigration 
personnel or the President or Vice-President. I understand that the 
House version further adds that the sharing is appropriate only when it 
relates to foreign intelligence information. This germaneness standard 
is workable, and the authority requested presents no constitutional 
issue. There is no basis to fetter this sharing of information upon 
court order since that would in essence make sharing of information 
less possible in a terrorism investigation than in common criminal 
practice today where federal prosecutors share this information with 
state law enforcement officers investigating local crime.
    A good deal of debate has focused upon section 153 and the 
expansion of the Foreign Intelligence Surveillance Act (FISA) 50 U.S.C. 
sections 1800-1863 to circumstances that are not primarily intelligence 
related, but have foreign intelligence merely as one of its purposes. 
The Attorney General posits that this will eliminate the need to 
constantly re-evaluate whether the intelligence purposes of an 
investigation outweigh the criminal objectives.
    While the distinction between primary purpose and one purpose 
mirrors lower court case law designed to insure the observance of 
Fourth Amendment protections in criminal cases, the distinction makes 
little sense where both intelligence and law enforcement communities 
must work side by side in the war on terrorism. It is also a 
distinction that has never been formally made by the Supreme Court. 
Gathering intelligence without meeting the stringent probable cause and 
notice elements of a traditional Title III criminal investigation are 
essential to tracking down terrorist activity. The real distinction 
should not be between intelligence and criminal purposes, but whether 
the surveillance or search is being effectively directed at terrorist 
activity, especially that from a foreign source, without having to 
decide whether at any given time one purpose or the other predominates.
    In my judgment, this greater flexibility does not present a 
constitutional violation.
    First, a little bit of background. Before FISA, wiretapping for 
national security purposes was essentially unregulated. In 1972, the 
Supreme Court, in United States v. United States District Court, 407 
U.S. 297 (1972)--the so-called Keith opinion--ruled that wiretaps 
conducted for purposes of domestic security violated the Fourth 
Amendment unless a warrant had been obtained from a court before the 
surveillance was conducted. However, the Court declined to hold that 
this warrant requirement also applied to surveillance of foreign 
governments or their agents.
    Congress established procedures for law-enforcement wiretapping in 
1968, including a requirement of probable cause that a crime had been 
or would soon be committed. This statute created significant 
protections against wiretapping in most situations, but it again 
specifically exempted national security searches from its scope. 
Congress provided that ``nothing in the Act limited the President's 
existing constitutional power to obtain foreign intelligence or protect 
national security.'' 18 U.S.C. 2511(3) (1968).
    The Carter administration following congressional study sought the 
enactment of FISA while nevertheless contending, as most presidents 
have, that the Executive has inherent power to conduct warrantless 
electronic wiretapping for national security purposes. Certainly, in 
this regard, it can be tenably argued that the President's Article II 
responsibilities may be sufficient in themselves in an emergency of the 
type we presently face. Aside from this inherent Executive claim, 
emergency statutory authority is expressly confirmed in FISA insofar as 
the Attorney General may authorize immediate surveillance without court 
order. 18 U.S.C. 1802(a)(1). The Act also authorizes the conducting of 
electronic surveillance without a warrant when the Attorney General 
certifies in writing and under oath that (among other conditions) the 
government will comply in statutory ``minimization procedures'' 
(relating to the unnecessary dissmenination of nonpublic information), 
and that there is no substantial likelihood that the surveillance will 
acquire the contents of any communication to which a ``United States 
person'' is a party.
    In all other circumstances, the government may only conduct 
electronic surveillance pursuant to FISA's advance procedure for 
judicial review. The application for the search order must contain the 
approval of the Attorney General, a description of the target of the 
surveillance, and proposed minimization procedures. The application 
must also include a statement of facts demonstrating probable cause 
that the target is either a foreign power or an agent of a foreign 
power, and that the facilities to be searched are being used or are 
about to be used by a foreign power or an agent of a foreign power. 
Finally, the application must include certification from an appropriate 
executive branch official that the information sought is foreign 
intelligence information, that the purpose of the surveillance is to 
obtain foreign intelligence information, and that normal techniques 
could not obtain the desired information. The executive official must 
present facts to support these certifications, but as against foreign 
powers or agents thereof, no showing of probable cause is required.
    As suggested above, FISA provides a heightened standard of review 
for United States persons, which includes both citizens and aliens 
lawfully admitted for permanent residence. FISA expressly provides that 
United States Persons shall not be subject to FISA surveillance solely 
on the basis of their constitutionally protected First Amendment 
rights.
    None of these protections are altered by the proposed legislation. 
Can it thus truly be claimed that allowing FISA to be applied in 
criminal prosecutions is unconstitutional if foreign intelligence is 
only one, and not the primary, purpose? No. At worst, should the 
Supreme Court observe the primary purpose distinction that has been 
indulged in lower courts, the consequence may be a denied warrant, or 
if a warrant issues, suppression of evidence. All proposed section 153 
does is eliminate the statutory basis for judicial challenge to 
acquired evidence in a subsequent Article III trial of a terrorist 
suspect. Without the statutory impediment that the Attorney General 
seeks to eliminate, to find unconstitutionality under the Fourth 
Amendment, the Supreme Court would have to both disregard the 
longstanding claims of inherent presidential authority to protect the 
national security interests of the United States and, in a circumstance 
like the present national security emergency, the fact of that 
emergency. Warrant requirements need not be followed where there is 
special government need. Searches without warrants or probable cause 
are generally constitutional ``when special needs, beyond the normal 
need for law enforcement'' make these elements unworkable. Veronia 
School District 47J v. Acton, 515 U.S. 646 (1995). The constitutional 
standard for all searches or surveillance is ``reasonableness.''
    Confronting the present terrorist threat is surely reasonable and 
meets that special need. Now more than ever our national security 
requires ``the utmost stealth, speed, and secrecy.'' United States v. 
Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980) (adopting the 
foreign intelligence exception to the Fourth Amendment). A warrant 
requirement adds a procedural hurdle that reduces the flexibility of 
executive foreign intelligence initiatives launched in the aftermath of 
September 11 and before, and in some cases delay executive response to 
foreign intelligence threats, and increase the chance of leaks 
regarding sensitive executive operations. See Zweibon v. Mitchell, 516 
F.2d 594, 704 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).
    There is also the matter of institutional competence. The executive 
possesses unparalleled expertise to make the decision whether to 
conduct foreign intelligence surveillance, whereas the judiciary is 
largely inexperienced in making the delicate and complex decisions that 
lie behind foreign intelligence surveillance. True, courts possess 
expertise in making the probable cause determination involved in 
surveillance of suspected criminals, but they are not proficient in 
military affairs, which is what is most essential to our nation's 
security in the present climate. Few, if any, district courts would be 
truly competent to judge the importance of particular information to 
the security of the United States or the ``probable cause'' to 
demonstrate that the government in fact needs to recover that 
information from one particular source. Even the special court created 
by FISA comprehends the reality of judicial limitation by prescribing a 
``clearly erroneous'' standard of review.
    In contemplating the constitutionality of proposed section 153, the 
Supreme Court would also be certain to acknowledge that the executive 
branch not only has superior expertise in the area of foreign 
intelligence, but also, as even the lower courts tendering the primary 
purpose rationale admit, is the constitutionally designated authority 
in foreign affairs. See First National Bank v. Banco Nacional de Cuba, 
406 U.S. 759, 765-68 (1972); Oetjen v. Central Leather Co., 246 U.S. 
297, 302 (1918). The President is tasked by the constitution with the 
conduct of the foreign policy of the United States. See United States 
v. Curtiss-Wright Corp., 299 U.S. 304 (1936). Just as the separation of 
powers in Keith forced the executive to recognize a judicial role when 
the President conducts domestic security surveillance, 407 U.S. at 316-
18, so the separation of powers would enjoin the Court in all 
likelihood to acknowledge the principal responsibility of the President 
for foreign affairs and concomitantly for foreign intelligence 
surveillance. In my judgment, this should extend to the question of 
whether the pursuit of terrorists with FISA authority is at any given 
time more a military, than a criminal prosecution, objective.
    It must be remembered that FISA itself did not transfer the 
traditional Fourth Amendment warrant requirement unaltered into the 
foreign intelligence field. As suggested earlier, the statute does not 
contain a blanket warrant requirement; rather, it exempts certain 
categories of foreign intelligence surveillance. 50 U.S.C. 1802. Nor 
does the statute require the executive to satisfy the usual standards 
for the issuance of a warrant; the executive need demonstrate only 
probable cause that the target is a foreign power or a foreign agent 
and, in the case of United States citizens and resident aliens, that 
the government is not clearly erroneous in believing that the 
information sought is the desired foreign intelligence information and 
that the information cannot be reasonably obtained by normal methods. 
50 U.S.C. sections 1805 and 1804(a)(7)(E).
    Of course, insofar as the above authorities sanction section 153 in 
general, it especially does not contravene constitutionally protected 
privacy interests in the context of pursuing terrorist activity. Almost 
by definition in such context foreign intelligence is a sufficient 
purpose.
    Turning to Title II and the immigration proposals, it is evident 
that a broadened definition of terrorist is needed. Under current law, 
an alien is inadmissible and deportable for engaging in terrorist 
activity only when the alien has used explosives or firearms. Opponents 
of the Attorney General's proposal claim the new definition of 
terrorism is too broad. For example, Professor Cole specifically 
objects to adding the words ``or other weapon or dangerous device'' to 
section 201(a)(1)(B) (ii), which--as noted--presently prohibits only 
the use or threat to use any ``explosive or firearm.'' Professor Cole 
asserts that expanding the term to include a residual category of other 
weapons trivializes terrorism. This is not constitutional law, it is 
opinion.
    And I dare say is not the opinion of the families of the innocent 
men and women who had their commercial airliner turned into a ``weapon 
and dangerous device,'' or whose family members were killed with a 
``box cutter'' en route. It is not likely the opinion of the families 
who lost loved ones in the World Trade Center or the Pentagon or in 
rural Pennsylvania. Perhaps, prior to September 11, we could be lulled 
into the notion that not even terrorists would conceive of using 
innocent human beings as a weapon against other innocent human beings 
on our own soil, but sadly that is no longer our reality. Hypotheticals 
that the statute might be contorted to apply to a barroom brawl or a 
domestic dispute overlooks the reason we have been called here, demeans 
the judgment of federal officers, and are quite simply, too facetious 
to be credited as a legal objection.
    Similarly, opponents of this legislation are concerned that aliens 
who associate with terrorist organizations may be deported when their 
purported association has somehow been confined to the non-terrorist 
functions of the organization. Terrorists unfortunately gain financial 
and other support hiding behind the facade of charity. Those opposing 
this new immigration authority seem undisturbed by this. That is again 
a policy choice; it is not a constitutional one. A statute, like 
proposed section 201, aimed at supplying a general prohibition against 
an alien contributing funds or other material support to a terrorist 
organization (as designated under current law by the Secretary of 
State) or to any non-designated organization that the alien ``knows or 
reasonably should know'' furthers terrorist activity does not violate 
the Constitution. Loosely citing cases that prohibit assigning guilt by 
association are inapposite. The cases cited by opponents of this 
legislation deal with domestic civil rights and the like pertain to the 
nonviolent association of American citizens not the fanatical planning 
of non citizens.
    Eliminating terrorism requires not just excluding terrorists as 
individuals, but individuals who engage in terrorist activity either in 
an individual capacity or as a member of an organization. There is 
nothing unconstitutional about this. The Constitution does not require 
that associations of terrorists be ignored. Yes, the government must 
prove specific intent in a criminal trial that the individual had made 
the association to advance unlawful purposes. Section 201 envisions 
just that. ``Engaging in terrorist activity'' means committing a 
terrorist act or otherwise committing acts that ``the actor knows, or 
reasonably should know, affords material support . . . .to any 
organization that the actor knows, or reasonably should know, is a 
terrorist organization, or to any individual whom the actor knows, or 
reasonably should know, has committed or plans to commit any terrorist 
activity.'' The specific intent requirements are not only explicit, but 
multiple. It is thus a blatant fabrication on the part of the objectors 
that the proposal severs ``any tie between the support provided and 
terrorist activity.'' This is not, as the objectors claim, ``guilt by 
association,'' but guilt for associating with terrorists for terrorism 
purposes.
    The proposed legislation likewise does not punish those who 
innocently may support a front organization or even may support an 
individual who had previously committed a terrorist activity if the 
alien establishes ``by clear and convincing evidence that such support 
was afforded only after that individual had permanently and publicly 
renounced and rejected the use of, and had cease to commit or support, 
any terrorist activity.'' Section 201 (a)(1)(C)(iii)(V).
    The witnesses against the Attorney General's well-conceived 
proposal also mislead by mis-citation. They would have the committee 
believe, as one witness said last week in opposition before the 
Intelligence Committee, that ``[t]he First and Fifth amendments apply 
equally to citizens and aliens residing in the United States.'' [Cole 
statement at n. 3, citing Kwong Hai Chew v. Colding, 344 U.S. 590, 596 
n.5 (1953)]. However, this cannot be said without qualification. With 
regard to exclusion of immigrants, U.S. authority is plenary. Yick Wo 
v. Hopkins, 118 U.S., at 369; Kwong Hai Chew, 344 U.S., at 596, n. 5. 
(``The Bill of Rights is a futile authority for the alien seeking 
admission for the first time to these shores.'') And the Court has long 
held that ``Whatever the procedure authorized by Congress is, it is due 
process as far as an alien denied entry is concerned.'' United States 
ex rel. Knauff v. Shaughnessy, 338 U.S. at 544.
    Terrorists or those seeking association with them clearly can be 
excluded from our Nation without offending the First Amendment or any 
other provision of the Constitution. While additional rights attend an 
immigrant granted admission, they are not on par with citizens. In U.S. 
v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), for example, the Court 
opined that: ``[Our] cases, however, establish only that aliens receive 
constitutional protections when they have come within the territory of 
the United States and developed substantial connections with this 
country. See, e.g., Plyler v. Doe, 457 U.S., at 212 (The provisions of 
the Fourteenth Amendment `` `are universal in their application, to all 
persons within the territorial jurisdiction. . . .' '').
    These leads to the question of whether those posing terrorist 
threat can be detained by the Attorney General. The detention provision 
has been the subject of much debate and as of this writing was still in 
flux. The Senate version of section 203 provides for this insofar as 
``[t]he Attorney General may certify [for detention] an alien to be an 
alien he has reason to believe may commit, further, or facilitate 
[terrorist] acts . . . . or engage in any other activity that endangers 
the national security of the United States.'' The objectors to the 
legislation recite, erroneously, that the proposal mandates indefinite 
detention. As the quoted language above indicates, the Attorney 
General's certification is permissive (may, not shall), even as 
following certification, the detention naturally follows. It would be 
illogical if it did not.
    Is this detention based on certification unconstitutional? Not even 
the opponents claim this; instead, they opine it raises 
``constitutional concerns.'' They especially say this would be true if 
it were used to detain those giving ``peace training to the IRA.'' Any 
statute can be made to raise constitutional concerns if it is 
manipulated to apply against something other than its constitutional 
object. The Congress is not tasked with drafting against the absurd. It 
is tasked with addressing the very real dangers of those who wish to 
kill us for no reason other than we are American. The Attorney General 
can be given authority to address such hatred. He can also be given the 
authority to address the risks posed by enemy aliens who may flee or 
who may seek to thwart our security by exchanging information or 
launching an additional attack.
    But, claim the objectors, the Attorney General cannot be given 
authority to detain persons he cannot deport. Perhaps, but that is not 
the question that needs to be answered. The Attorney General has not 
asked for that authority. He seeks to detain those who have been found 
to be removable, but for various reasons (mostly related to 
international obligations to avoid repatriation to a country where 
torture is inevitable), cannot be removed immediately. Existing law 
allows aliens to be removed not only when they were originally 
inadmissible or convicted of a crime or for violation of immigration 
status, but also for national security or foreign relations reasons, or 
as implied under the existing post-removal statute, when the alien is 
``determined by the Attorney General to be a risk to the community or 
unlikely to comply with the order of removal.'' 8 U.S.C. 1231(a)(6) 
(1994 ed., Supp. V) and 8 C.F.R. 241.4(a) (2001). This post-removal 
detention period authority was recently construed by the Supreme Court 
in Zadvydas v. Davis, 121 S.Ct. 2491 (2001). This case of statutory 
interpretation does not rule out indefinite detention where 
dangerousness is accompanied by special circumstance. 121 S.Ct. at 
2499. The Court explicitly noted that in establishing a presumptive six 
month period for detention nothing prevents the government from 
continuing detention with evidence of likely removal. Most relevantly, 
the Court did not even apply the presumptive six month detention limit 
to cases of detention for terrorist activity or its support. Wrote 
Justice Breyer for the Court:
    Neither do we consider terrorism or other special circumstances 
where special arguments might be made for forms of preventive detention 
and for heightened deference to the judgments of the political branches 
with respect to matters of national security. 121 S.Ct. at 2502.
    The detention by Attorney General certification thus raises none of 
the constitutional problems suggested by the legislation's detractors. 
Morever, even the opponents of this carefully-drawn legislation must 
and do concede that it adequately provides for judicial review of the 
Attorney General's determination.
    It should be noted that the House version of Section 203 is a bit 
different, providing, in addition to detention following a removal 
decision, for short-term detention of a suspected terrorist for up to 
seven days before charging an alien with a crime or a basis for 
removal. If no charges are filed, the alien is released. The House 
version provides for habeas review in the U.S. District Court of the 
District of Columbia of any decision to charge an alien. Under current 
regulation, INS may detain an alien for 48 hours before charging a 
crime or removable offense. Extending this time of detention without 
charge may raise more legal questions than the Senate version, which as 
explained by its proponents did not apply to an alien who was not 
already determined to be subject to removal. Whether a constitutional 
problem is presented by the House version likely depends upon the 
extent of due process protection afforded an individual alien in light 
of the degree of his or her substantial connection with this country. 
See, Plyler, supra.
    Raising civil libertarian objections to new law enforcement 
provisions is a healthy sign of a vibrant democracy committed to human 
rights. America should be justly proud of its temperate actions in 
response to September 11, and its debate. Disagreement is not a sign of 
disrespect. However, with regard to the provisions discussed above, 
Congress should proceed to enactment since no significant 
constitutional objection has been raised. Should Congress nevertheless 
fear that the power asked for might be abused, the prudent course would 
not be to deny the needed authority, but to draft a cause of action for 
damages to rectify possible misapplication, or to provide for a sunset 
of the authority after a period of time sufficient to meet the present 
exigency. The possibility of abuse should not obscure the present need 
and the supposition of trust that one must have if our democratic order 
is to be safeguarded from those outside our borders who wish to subvert 
it.
    Thank you for the opportunity to appear before you this morning.

    Chairman Feingold. Thank you, Dean. I am intrigued by this 
distinction between constitutional law and constitutional 
policy. I do think that there are questions of constitutional 
law here, but surely if there is such a separate area as 
constitutional policy, that is even more our responsibility 
than the United States Supreme Court because we are here to 
make policy. But I do appreciate your testimony.
    Now, I would like to turn to Professor David Cole. 
Professor Cole currently teaches at Georgetown University Law 
Center and he has long been associated with the Center for 
Constitutional Rights. In addition to litigating several 
important First Amendment before the United States Supreme 
Court, Professor Cole has written extensively on the issue 
before us today, co-authoring the book Terrorism and the 
Constitution: Sacrificing Civil Liberties in the Name of 
National Security.
    I welcome you, Professor, and you may proceed.

     STATEMENT OF DAVID COLE, PROFESSOR OF LAW, GEORGETOWN 
            UNIVERSITY LAW CENTER, WASHINGTON, D.C.

    Mr. Cole. Thank you, Senator Feingold.
    Precisely because the terrorists violated every principle 
of civilized society, of human decency and of the rule of law, 
we must, in responding to the threat of terrorism, maintain our 
commitments to principle. I want to suggest three principles.
    First, we should not overreact, as we have so often 
overreacted in the past in times of fear.
    Second, we should not sacrifice the constitutional 
principles for which we stand.
    Third, in balancing liberty and security, we should not 
trade the liberties of a vulnerable group--immigrants, and 
particularly Arab and Muslim immigrants--for the security of 
the majority.
    Unfortunately, the immigration provisions that have been 
advanced by the Bush administration, that have been proposed in 
the House and that are now being considered in the Senate-
Justice Department negotiation violate all three principles. 
They overreact because they impose guilt by association for 
wholly innocent associational activity, and they authorize 
indefinite detention on the Attorney General's say-so of any 
such alien.
    They sacrifice our constitutional principles, and this is 
constitutional law, not constitutional policy. Guilt by 
association, the Supreme Court says, violates the Fifth 
Amendment and the First Amendment, both of which apply, the 
Supreme Court has said, without distinction to citizens and 
aliens living here.
    Executive detention without any showing of current 
dangerousness or risk of flight, which is what the mandatory 
detention provision in the House bill would authorize, violates 
both substantive due process and procedural due process. And in 
reacting this way, we are trading the liberties of the few, of 
those without a voice, of immigrants who can't vote, and 
particularly Arabs and Muslims, for the purported security of 
the rest of us.
    These are provisions which will, we know, be targeted at 
Arabs and Muslims, and not for their individual conduct, but 
for their group identity, the very type of thinking that 
underlies the hate crimes that we all so virulently oppose.
    First, guilt by association. Current law makes aliens 
deportable for terrorist activity, for supporting terrorist 
activity, for planning, facilitating, or encouraging terrorist 
activity any way, shape or form. The Bush proposal makes aliens 
deportable for any associational support of any group that has 
ever engaged in or used violence. There is no requirement of 
any nexus between the alien's support and the actual violence.
    If an immigrant in the 1980s gave money to the African 
National Congress to support its non-violent struggles against 
apartheid, just as thousands of Americans did, he would be 
deportable under this statute for providing support to a 
terrorist organization. The African National Congress also 
engaged in violent opposition to apartheid. The African 
National Congress was listed every year until it came to power 
as a terrorist organization by the Secretary of State. That 
wholly innocent activity would be a deportable activity. Is 
that a measured response? No.
    Even if the alien shows that his support was designed to 
counter terrorist activity, that is no defense. So if an alien 
today wants to further the peace process in England by 
providing peacemaking training to the IRA, he is deportable. 
Even if he can prove that his support furthered peace and 
countered terrorism, he is deportable. Is that a measured 
response? I suggest no.
    The mandatory detention provisions are also clearly and 
plainly unconstitutional, for two reasons. First of all, they 
are essentially a form of preventive detention. The Supreme 
Court has held that preventive detention is only permissible 
under narrow circumstances where the Government shows 
dangerousness to others or risk of flight. Under the House bill 
and the Bush proposal, the Government would be permitted to 
engage in preventive detention without any showing of 
dangerousness to others or risk of flight.
    Under the House bill, all they have to show is that they 
have reasonable grounds to believe that someone is described in 
the terrorist activity provisions of the bill. But then the 
terrorist activity provisions of the bill are defined so 
broadly that they include every violent crime other than an 
armed robbery--every violent crime other than an armed robbery. 
That is not what the man on the street understands to be 
terrorism, that is not what the international community 
understands to be terrorism, and that is not a narrow class of 
people who pose a particular danger to society. Yet, that is 
the class of people who would be subject to mandatory detention 
under this provision.
    In addition, it would apply to people who gave money to the 
African National Congress or who gave peace-making training to 
the IRA. Even if there is no evidence that those people pose a 
threat to national security or pose a risk of flight, the 
statute would authorize their detention.
    The second problem: it authorizes indefinite detention. 
There have been news reports that have suggested erroneously 
that the House solves this problem by requiring the filing of 
charges within seven days. That is wrong because whether or not 
charges are filed doesn't matter. The statute provides that 
mandatory indefinite detention of aliens is permitted.
    Even if the alien prevails in his deportation proceeding 
and cannot be removed and has a right to remain here 
permanently, the statute provides for mandatory detection, not 
on a finding that the alien is a danger to society, but solely 
on a finding that the Attorney General had reasonable grounds 
to believe that he engaged in a crime of violence, that he was 
in a domestic dispute where he picked up a plate and threw it 
at his wife, or he was in a bar and picked up a broken bottle. 
That would constitute sufficient grounds for mandatory 
detention. That, I submit, is not a narrow, measured response. 
It is not the kind of careful consideration of civil liberties 
that we should be demanding in this time of fear. It is 
unfortunately precisely the kind of overreacting that we have 
so often seen in the past.
    Thank you.
    [The prepared statement of Mr. Cole follows:]

Statement of David Cole,\1\ Professor of Law, Georgetown University Law 
                        Center, Washington, D.C.

                              INTRODUCTION
    The deplorable and horrific attacks of September 11 have shocked 
and stunned us all, and have quite properly spurred renewed 
consideration of our capability to forestall future attacks. Yet in 
doing so, we must not rashly trample upon the very freedoms that we are 
fighting for.
---------------------------------------------------------------------------
    \1\ Professor, Georgetown University Law Center, and attorney with 
the Center for Constitutional Rights.
---------------------------------------------------------------------------
    Nothing tests our commitments to principle like fear and terror. 
But as we take up what President Bush has called a fight for our 
freedoms, we must maintain our commitments to those freedoms at home. 
The attack of September 11, and in particular the fact that our 
intelligence agencies missed it entirely, requires a review of our law 
enforcement and intelligence authorities. Everyone agrees that more 
should be done to ensure the safety of American citizens at home and 
abroad. But we must be careful not to overreact, and should therefore 
insist that any response be measured and effective.
    Three principles must guide our response to threat of terrorism. 
First, we should not overreact in a time of fear, a mistake we have 
made all too often in the past. Second, we should not sacrifice the 
bedrock foundations of our constitutional democracy--political freedom 
and equal treatment. And third, in balancing liberty and security, we 
should not trade a vulnerable minority's liberties, namely the 
liberties of immigrants in general or Arab and Muslim immigrants in 
particular, for the security of the rest of us.
    The Administration's proposal seeks a wide range of new law 
enforcement powers. I will focus my remarks on the immigration section 
of the Administration proposal. In doing so, I will also refer to the 
Sensenbrenner-Conyers bill, referred to as the PATRIOT Act, recently 
introduced in the House. In my view, the Administration's proposal is 
neither measured nor effective, and unnecessarily sacrifices our 
commitment to both equal treatment and political freedom. The PATRIOT 
Act mitigates some of the troubling aspects of the Administration's 
proposal, but remains deeply problematic, and unconstitutional in 
several respects. I will focus my remarks on the Administration's 
proposal, but will also note where the PATRIOT Act differs. The 
Administration's proposal has four fundamental flaws:

        1) It indulges in guilt by association, a concept that the 
        Supreme Court has rejected as ``alien to the traditions of a 
        free society and the First Amendment itself.'' NAACP v. 
        Claiborne Hardware Co., 458 U.S. 886, 932 (1982).
        2) It would apply its newly expanded deportation grounds for 
        associational activity retroactively, making aliens deportable 
        for activity that was wholly legal at the time they engaged in 
        it.
        3) It authorizes the INS to detain immigrants potentially 
        indefinitely, even where they cannot be deported and have a 
        legal right to live here permanently.
        4) It resurrects ideological exclusion--the notion that people 
        can be excluded for their political beliefs--a concept Congress 
        repudiated in 1990 when it repealed the McCarran-Walter Act.
                                HISTORY
    I will address each of these problems in turn. But before doing so, 
it is worth reviewing a little history. This is not the first time we 
have responded to fear by targeting immigrants and treating them as 
suspect because of their group identities rather than their individual 
conduct.
    In 1919, a series of politically motivated bombings culminated in 
the bombing of Attorney General A. Mitchell Palmer's home here in 
Washington, DC. Federal authorities responded by rounding up 6,000 
suspected immigrants in 33 cities across the country, not for their 
part in the bombings, but for their political affiliations. They were 
detained in overcrowded ``bull pens,'' and beaten into signing 
confessions. Many of those arrested turned out to be citizens. In the 
end, 556 were deported, but for their political affiliations, not for 
their part in the bombings.
    In World War II, the attack on Pearl Harbor led to the internment 
of over 100,000 persons, over two-thirds of whom were citizens of the 
United States, not because of individualized determinations that they 
posed a threat to national security or the war effort, but solely for 
their Japanese ancestry. The internment began in April 1942, and the 
last camp was not closed until four years later, in March 1946.
    In the McCarthy era, we made it a crime even to be a member of the 
Communist Party, and passed the McCarran-Walter Act, which authorized 
the government to keep out and expel noncitizens who advocated 
Communism or other proscribed ideas, or who belonged to the Communist 
Party or other groups that advocated proscribed ideas. Under the 
McCarran-Walter Act, the United States denied visas to, among others, 
writers Gabriel Garcia Marques and Carlos Fuentes, and to Nino Pasti, 
former Deputy Commander of NATO, because he was going to speak against 
the deployment of nuclear cruise missiles.
    We have learned from these mistakes. The Palmer Raids are seen as 
an embarrassment. In 1988, Congress paid restitution to the Japanese 
internees. In 1990, Congress repealed the McCarran-Walter Act political 
exclusion and deportation grounds. But at the time these actions were 
initially taken, they all appeared reasonable in light of the threats 
we faced. This history should caution us to ask carefully whether we 
have responded today in ways that avoid overreaction and are measured. 
to balance liberty and security. In several respects detailed below, 
the Administration's proposed Anti-Terrorism Act fails that test.
               COUNTERTERRORISM AUTHORITY IN EXISTING LAW
    In considering whether the Administration's bill is necessary, it 
is important to know what authority the government already has to deny 
admission to, detain, and deport aliens engaged in terrorist activity. 
The government already has extremely broad authority to act against any 
alien involved in or supporting any kind of terrorist activity:

        1. It may detain without bond any alien with any visa status 
        violation ifit institutes removal proceedings and has reason to 
        believe that he poses a threat to national security or a risk 
        of flight. The alien need not be charged with terrorist 
        activity. 8 U.S.C. Sec. 1226, 8 C.F.R. Sec. 241 The INS 
        contends that it may detain such aliens on the basis of secret 
        evidence presented in camera and ex parte to an immigration 
        judge.
        2. It may deny entry to any alien it has reason to believe may 
        engage inany unlawful activity in the United States, and to any 
        member of a designated terrorist group. It may do so on the 
        basis of secret evidence. 8 U.S.C. Sec. 1182(a)(3).
        3. It may deport any alien who has engaged in terrorist 
        activity, or supported terrorist activity in any way. Terrorist 
        activity is defined under existing law very broadly, to include 
        virtually any use or threat to use a firearm with intent to 
        endanger person or property (other than for mere personal 
        monetary gain), and any provision of support for such activity. 
        8 U.S.C. Sec. 1227(a)(4). Pursuant to the Alien Terrorist 
        Removal provisions in the 1996 Antiterrorism Act, the INS may 
        use secret evidence to establish deportability on terrorist 
        activity grounds.
        4. Relatedly, the Secretary of State has broad, largely 
        unreviewable authority under the 1996 Anti-Terrorism and 
        Effective Death Penalty Act to designate ``foreign terrorist 
        organizations'' and thereby criminalize all material support to 
        such groups. 8 U.S.C. Sec. 1189, 18 U.S.C. Sec. 2339B. This 
        provision triggers criminal sanctions, and applies to 
        immigrants and citizens alike. Osama bin Laden's organization 
        is so designated, and thus it is a crime, punishable by up to 
        10 years in prison, to provide any material support to his 
        group.
            THE ADMINISTRATION'S PROPOSED ANTI-TERRORISM ACT
    The immigration provisions of the Administration's Anti-Terrorism 
Act: (1) expand the grounds for deporting and denying entry to 
noncitizens; (2) expand the Secretary of State's authority to designate 
and cut off funding to ``foreign terrorist organizations;'' (3) create 
a new mandatory detention procedure for aliens certified as terrorists 
by the INS; (4) authorize the Secretary of State to share certain 
immigration file information with foreign governments; and (5) require 
the FBI and the Attorney General to share certain criminal history data 
with the INS and the State Department to improve visa decision making.
    The most troubling provisions are the expanded grounds for 
deportation and exclusion, and the new mandatory detention procedure.
        a. the administration bill imposes guilt by association
    The term ``terrorism'' has the capacity to stop debate. Everyone 
opposes terrorism, which is commonly understood to describe 
premeditated, politically-motivated violence directed at noncombatants. 
See 22 U.S.C. Sec. 2656f(d)(2) (defining terrorism as ``premeditated, 
politically motivated violence perpetrated against noncombatant targets 
by subnational groups or clandestine agents'').
    The INA, however, defines ``terrorist activity'' much more broadly, 
and under the Administration bill would define it beyond any common 
understanding of the term. Under current law, the INA defines 
``terrorist activity'' to include any use or threat to use an 
``explosive or firearm (other than for mere personal monetary gain) 
with intent to endanger ... the safety of one or more individuals or to 
cause substantial damage to property.'' 8 U.S.C. 
Sec. 1182(a)(3)(B)(ii). Under the Administration bill, this would be 
expanded to include the use or threat to use any ``explosive, firearm 
or other weapon or dangerous device'' with the intent to endanger 
person or property. Section 201(a)(1)(B)(ii). This definition 
encompasses a domestic disturbance in which one party picks up a knife, 
a barroom brawl in which one party threatens another with a broken beer 
bottle, and a demonstration in which a rock is thrown at another 
person. It would also apply to any armed struggle in a civil war, even 
against regimes that we consider totalitarian, dictatorial, or 
genocidal. Under this definition, all freedom fighters are 
terrorists.\2\
---------------------------------------------------------------------------
    \2\ In his testimony, Douglas Kmiec defends this expansion by 
erroneously stating that under current law, ``an alien is inadmissible 
and deportable for engaging in terrorist activity only when the alien 
has usied explosives or fairares.'' Kmiec Statement at 7. Therefore, he 
argues, the change is needed to encompass attacks like those of 
September 11. That is plainly wrong. In its current from 8 U.S.C. 
182(a)(3)(B)(ii) already defines ``terrorist activity'' to include, 
among other things, ``highjacking or sabotage of any conveyance 
(including a governmental organization) to do or abstain from doing any 
act as an explicit or implicit condition for the release of the 
individual seized or detained,'' ``assassination,''the use of any 
biological, chemical, or nuclear weapon, and the use or threat to use 
any explosive or firearm against person or property (other than for 
mere personal monetary again). Thus, no rewriting of the act is 
required to reach the conduct of September 11.
---------------------------------------------------------------------------
    The PATRIOT Act would define ``terrorist activity'' even more 
broadly, to include the use of ``any object'' with intent to endanger 
person or property. Under this bill, a demonstrator who threw a rock 
during a political demonstration would be treated as a ``terrorist.''
    The point is not that such routine acts of violence are acceptable, 
or that armed struggle is generally permissible. But to call virtually 
every crime of violence ``terrorism'' is to trivialize the term. And 
because so much else in the Administration bill and the PATRIOT Act 
turns on ``terrorist activity,'' it is critical to keep in mind the 
stunning overbreadth of this definition. Government action that might 
seem reasonable vis-a-vis a hijacker may not be justified vis-a-vis an 
immigrant who found himself in a bar fight, threw a rock during a 
demonstration, or who sent humanitarian aid to an organization involved 
in civil war. Yet the Administration bill draws no distinction between 
the hijacker, the humanitarian, the political demonstrator, and the 
barroom brawler.
    The breadth of ``terrorist activity'' is expanded still further by 
the Administration's proposed redefinition of ``engage in terrorist 
activity.'' Under current law, that term is defined to include engaging 
in or supporting terrorist activity in any way. 8 U.S.C. 
Sec. 1182(a)(3)(B)(iii). The Administration proposes to expand it to 
include any associational activity in support of a ``terrorist 
organization.'' Section 201(a)(1)(C). And because the INS has argued 
that a terrorist organization is any group that has ever engaged in 
terrorist activity, as defined in the INA, irrespective of any lawful 
activities that the group engages in, this definition would potentially 
reach any group that ever used or threatened to use a ``firearm or 
other weapon'' against person or property.\3\
---------------------------------------------------------------------------
    \3\ In the Administration draft circulated Wednesday, September 19, 
terrorist organization was expressly defined to include any group that 
has ever engaged in or provided material support to a terrorist 
activity, irrespective of any other fully lawful activities that the 
group may engage in. In the revised draft circulated Thursday, 
September 20, the bill deleted the definition of terrorist 
organization, but still made any support of a terrorist organization a 
deportable offense. This is even worse from a notice perspective, as it 
makes aliens deportable for providing support to an entity that is 
underfined. In litigation, the INS has argued that the term ``terrorist 
organization'' means any group that has ever committed ``terrorist 
activity.'' as the term is defined in the INA.
---------------------------------------------------------------------------
    The Administration's bill contains no requirement that the alien's 
support have any connection whatsoever to terrorist activity. Thus, an 
alien who sent coloring books to a day-care center run by an 
organization that was ever involved in armed struggle would appear to 
be deportable as a terrorist, even if she could show that the coloring 
books were used only by 13-year olds. Indeed, the law apparently 
extends even to those who seek to support a group in the interest of 
countering terrorism. Thus, an immigrant who offered his services in 
peace negotiating to the IRA in the hope of furthering the peace 
process in Great Britain and forestalling further violence would appear 
to be deportable as a terrorist.
    The bill also contains no requirement that the organization's use 
of violence be contemporaneous with the aid provided. An alien would 
appear to be deportable as a terrorist for making a donation to the 
African National Congress today, because fifteen years ago it used 
military as well as peaceful means to oppose apartheid.
    And unlike the 1996 statute barring funding to designated foreign 
terrorist groups, the Administration bill does not distinguish between 
foreign and domestic organizations. Thus, immigrants would appear to be 
deportable as terrorists for paying dues to an American pro-life group 
or environmental organization that ever in its past used or threatened 
to use a weapon against person or property.
    The net effect of the Administration's expansion of the definition 
of ``engage in terrorist activity'' and ``terrorist activity'' is to 
make a substantial amount of wholly innocent, nonviolent associational 
conduct a deportable offense. By severing any tie between the support 
provided and terrorist activity of any kind, the bill indulges in guilt 
by association. Douglas Kmiec disputes this assertion in his testimony, 
but in doing so refers not to the Administration's proposal, but to the 
PATRIOT Act. Kmiec Statement at 7. Even as to the PATRIOT Act, however, 
Professor Kmiec is wrong.
    The PATRIOT Act seeks to strike a compromise on the issue of guilt 
by association. It gives the Administration what it seeks--the power to 
impose guilt by association--for support of any group designated as a 
foreign terrorist organization by the Secretary of State under 8 U.S.C. 
Sec. 1189. An alien who sends humanitarian aid to a designated foreign 
terrorist group would be deportable, without more. But for those groups 
that are not designated, the bill requires a nexus to terrorist 
activity: the alien would be deportable only if he provided support to 
a non-designated group in circumstances in which he knew, or reasonably 
should have known, that his support was furthering terrorist activity. 
Thus, for designated groups, the PATRIOT Act permits guilt by 
association, but for non-designated groups, the PATRIOT Act retains the 
existing requirement that the INS show a nexus between the alien's act 
of support and some terrorist activity. The compromise reflected in the 
PATRIOT Act thus properly eliminates guilt by association for non-
designated groups, but expressly authorizes guilt by association for 
any organization designated by the Secretary of State under 8 U.S.C. 
Sec. 1189.
    In my view, the principle that people should be held responsible 
for their own individual conduct, and not for the wrongdoing of those 
with whom they are merely associated, brooks no compromise. Guilt by 
association, the Supreme Court has ruled, violates the First and the 
Fifth Amendments.\4\ It violates the First Amendment because people 
have a right to associate with groups that have lawful and unlawful 
ends. Accordingly, the Court has ruled that one can be held responsible 
for one's associational ties to a group only if the government proves 
``specific intent'' to further the group's unlawful ends. United States 
v. Robel, 389 U.S. 258, 262 (1967).
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    \4\ The First and Fifth amendments apply to citizens and aliens 
residin in the United States. Kwong Hai Chew v. Colding, 344 U.S. 590, 
596 n.5 (1953). Mr. Kmiec suggest that this is wrong because the First 
and Fifth Amendments do not extend to aliens seeking entry from abroad. 
Kmiec Statement at 8. But of course such aliens are not residing in the 
United States. The Supreme Court has long distinguished between aliens 
are not residing in the United States. The Supreme Court has long 
distinguished between aliens seeking entry from outside our borders, 
who have no constitutional protections, and aliens here, whether here 
legally or illegally, who are protected by the First and Fifth 
AMendments to the Constitution. The Court reiterated this basic point, 
apparently missed by Mr. Kmiec, as recently as last term, in Zsadvydas 
v, Davis, 121 S. Ct. 2491, 2500 (2001) (``once an alien enters the 
country, the legal circumstance changes, for the due process here is 
lawful, unlawful, temporary, or permanent.'' The Supreme Court could 
not have been any clearer in Colding, in which it stated that neither 
First or Fifth Amendments ``acknowledges any distinction'' between 
citizens and aliens residing here.
---------------------------------------------------------------------------
    Guilt by association also violates the Fifth Amendment, because 
``in our jurisprudence guilt is personal.'' Scales v. United States, 
367 U.S. 203 (1961). To hold an alien responsible for the military acts 
of the ANC fifteen years ago because he offers a donation today, or for 
providing peace negotiating training to the IRA, violates that 
principle. Without some connection between the alien's support and 
terrorist activity, the Constitution is violated. Douglas Kmiec argues 
that the guilt by association cases ``deal with domestic civil 
rights.'' Kmiec Statement at 7.In fact, this principle was developed 
with respect to association with the Communist Party, an organization 
that Congress found to be, and the Supreme Court accepted as, a 
foreign-dominated organization that used sabotage and terrorism for the 
purpose of overthrowing the United States by force and violence. Yet 
even as it accepted those findings as to the Communist Party, the Court 
held that guilt by association was not permissible.
    The guilt by association provisions of the Administration bill also 
suffer from tremendous notice problems. In the most recent draft, 
``terrorist organization'' is wholly undefined, yet an alien can lose 
his right to remain in this country for supporting such an undefined 
entity. Is a terrorist organization one that engages exclusively in 
terrorism, primarily in terrorism, engages in terrorism now, or ever 
engaged in terrorism? The definition proffered in the Administration's 
Wednesday draft, and argued for by the INS in litigation, does not 
solve the notice problem, because it is so broad that it encompasses 
literally thousands of groups that ever used or threatened to use a 
weapon. Any alien who sought to provide humanitarian aid to any group 
would have to conduct an extensive investigation to ensure that neither 
the organization nor any subgroup of it ever used or threatened to use 
a weapon.
    Congress repudiated guilt by association in 1990 when it repealed 
the McCarran-Walter Act provisions of the INA, which made proscribed 
association a deportable offense, and had long been criticized as being 
inconsistent with our commitments to political freedom. In 1989, a 
federal district court declared the McCarran-Walter Act provisions 
1unconstitutional. American-Arab Anti-Discrimination Comm. v. Meese, 
714 F. Supp. 1060 (C.D. Cal. 1989), rev'd in part and aff'd in part on 
other grounds, 970 F.2d 501 (9th Cir. 1991). In 1990, Congress repealed 
those provisions. Yet the Administration would resurrect this long-
rejected and unconstitutional philosophy.
     b. the administration's bill would apply its expanded grounds 
  fordeportation retroactively, so that aliens would be deported for 
          conduct fully lawful at the time they engaged in it
    The expansive definitions of ``terrorist activity'' and ``engage in 
terrorist activity'' detailed above are exacerbated by the fact that 
they apply retroactively, to conduct engaged in before the effective 
date of the Act. Since the principal effect of the Administration's new 
definitions is to render deportable conduct that is now wholly lawful, 
this raises serious problems of fundamental fairness.
    As noted above, aliens are currently deportable for engaging in or 
supporting terrorist activity. However, the new law would add as new 
grounds of deportation wholly innocent and nonviolent associational 
support of political organizations that have at some time used a 
weapon. activity. Even to apply that ground prospectively raises 
substantial First and Fifth Amendment concerns, as noted above. But to 
apply it retroactively is grossly unfair.
    Moreover, retroactive application would serve no security purpose 
whatsoever. Since under current law any alien supporting terrorist 
activity is already deportable, the only aliens who would be affected 
by the bill's retroactive application would be those who were not 
supporting terrorist activity -- the immigrant who donated to the 
peaceful anti-apartheid activities of the ANC, or who provided 
peacemaking training to the IRA, or who made a charitable donation of 
his time or money to the lawful activities of an environmental or pro-
life group that once engaged in violence. There is simply no 
justification for retroactively imposing on such conduct -- fully 
lawful today -- the penalty of deportation.
    The PATRIOT Act largely solves the retroactivity problem, at least 
with respect to the guilt by association provisions, by limiting its 
newly expanded grounds of deportation for support of designated 
terrorist organizations to support provided after the designations were 
made. Since the designation already triggers a criminal penalty under 
current law, most aliens affected by this provision even for pre-Act 
conduct would not be able to claim that they were being deported for 
conduct that was legal when they engaged in it. However, the PATRIOT 
Act would present some retroactivity problems. Under the existing 
criminal provisions for material support to terrorist organizations, it 
is lawful to send medicine or religious materials to a designated 
group. 18 U.S.C. Sec. 2339A. Yet the PATRIOT Act would make such 
conduct, even conduct engaged in before the PATRIOT Act took effect, a 
deportable offense. There is no warrant for deporting people for 
providing humanitarian aid at a time when it was fully legal to do so.
 c. the mandatory detention provision section violates due process by 
  authorizing indefinite unilateral executive detention irrespective 
                  ofwhether the alien can be deported
    The Administration bill would amend current INS detention authority 
to provide for ``mandatory detention'' of aliens certified by the 
Attorney General as persons who may ``commit, further, or facilitate 
acts described in sections 237(a)(4)(A)(I), (A)(iii), or (B), or engage 
in any other activity that endangers the national security of the 
United States.'' Section 202(1)(e)(3). Such persons would be detained 
indefinitely, even if they are granted relief from removal, and 
therefore have a legal right to remain here. This provision would 
authorize the INS to detain persons whom it has no authority to deport, 
and without even instituting deportation proceedings against them, 
simply on an executive determination that there is ``reason to 
believe'' that the alien ``may commit'' a ``terrorist activity.''
    To appreciate the extraordinary breadth of this unprecedented 
power, one must recall the expansive definition of ``terrorist 
activity'' and ``engage in terrorist activity'' noted above. This bill 
would mandate detention of any alien who the INS has ``reason to 
believe'' may provide humanitarian aid to the African National 
Congress, peace training to the IRA, or might get into a domestic 
dispute or barroom brawl. There is surely no warrant for preventive 
detention of such people, much less mandatory detention on a ``reason 
to believe'' standard. Mr. Kmiec, defending the provision, suggests 
that these examples are unlikely to arise. But the point is that any 
provision so broad as to permit such applications is in no way narrowly 
tailored to addressing true terrorist threats.
    Current law is sufficient to meet the country's needs in fighting 
terrorism. The INS is authorized to detain without bond any alien in a 
removal proceeding who poses a threat to national security or a risk of 
flight. It routinely does so. It also has authority, as illustrated in 
recent weeks, to detain aliens without charges for up to 48 hours, and 
in extraordinary circumstances, for a reasonable period of time.
    This provision raises four basic concerns. First, it is plainly 
unconstitutional, because it mandates detention of persons who pose no 
threat to national security or risk of flight. If the Attorney General 
certifies that an individual may provide humanitarian support to a 
group that has engaged in a civil war, for example, the person is 
subject to mandatory detention, without any requirement that the alien 
currently poses a threat to national security or risk of flight.
    The mandatory detention provision is a form of preventive detention 
prior to trial. But the Supreme Court has held that ``[i]n our society, 
liberty is the norm, and detention prior to trial or without trial is 
the carefully limited exception.'' United States v. Salerno, 481 U.S. 
739, 755 (1987). Preventive detention is constitutional only in very 
limited circumstances, where there is a demonstrated need for the 
detention--because of current dangerousness or risk of flight--and only 
where there are adequate procedural safeguards. Salerno, 481 U.S. at 
746 (upholding preventive detention only where there is a showing of 
threat to others or risk of flight, where the detention is limited in 
time, and adequate procedural safeguards are provided); Foucha v. 
Louisiana, 504 U.S. 71, 80 (1992) (civil commitment constitutional only 
where individual has a harm-threatening mental illness, and adequate 
procedural protections are provided); Zadvydas v. Davis, 121 S., Ct. 
2491, 2498-99 (2001) (explaining constitutional limits on preventive 
detention, and interpreting immigration statute not to permit 
indefinite detention of deportable aliens). Where there is no showing 
that the alien poses a threat to national security or a risk of flight, 
there is no justification whatsoever for detention, and any such 
detention would violate substantive due process.
    Second, the detention authority proposed would allow the INS to 
detain aliens indefinitely, even where they have prevailed in their 
removal proceedings. This, too, is patently unconstitutional. Once an 
alien has prevailed in his removal proceeding, and has been granted 
relief from removal, he has a legal right to remain here. Yet the 
Administration proposal would provide that even aliens granted relief 
from removal would still be detained.\5\ At that point, however, the 
INS has no legitimate basis for detaining the individual. The INS's 
authority to detain is only incident to its removal authority. If it 
cannot remove an individual, it has no basis for detaining him. 
Zadvydas v. INS, 121 S. Ct. 2491 (holding that INS could not detain 
indefinitely even aliens ruled deportable where there was no reasonable 
likelihood that they could be deported because no country would take 
them).\6\
---------------------------------------------------------------------------
    \5\ In many instances, an alien who poses a threat to national 
security will not be eligible for discretionary relief.
    \6\ While the Court in Zadvydas left undecided the question of 
indefinite detention of a deportable alien where applied ``narrowly to 
`a small segment of particularly dangerous individuals,' say suspected 
terrorists,'' 121 S. Ct. at 2499, the Court did not decide that such 
detention would be permissible since the question was not presented. 
Moreover, the Administration's proposed definition of ``terrorist 
activity'' would not be limited to a narrow, ``small segment of 
particularly dangerous individuals,'' as te Court in Zadvydas 
contemplated, but to garden variety criminals, barroom brawles, and 
those who have supported no violent activity whatsoever, but provided 
humanitarian support to the Afican National Congress. It begs credulity 
to characterize such an open-ended authority as limited to a ``small 
segment of particularly dangerous individuals.''
---------------------------------------------------------------------------
    Third, the standard for detention is vague and insufficiently 
demanding, and raises serious constitutional concerns. It is important 
to keep in mind that the bill proposes to authorize mandatory and 
potentially indefinite detention. That is a far more severe deprivation 
of liberty than holding a person for interrogation or trial. Yet the 
INS has in litigation argued that ``reason to believe'' is essentially 
equivalent to the ``reasonable suspicion'' required for a brief stop 
and frisk under the Fourth Amendment.The Constitution would not permit 
the INS to detain an alien indefinitely on mere ``reasonable 
suspicion,'' a standard which does not even authorize a custodial 
arrest in criminal law enforcement.
    Fourth, and most importantly, it is critical to the 
constitutionality of any executive detention provision that the person 
detained have a meaningful opportunity to contest his detention both 
administratively and in court. INS v. St. Cyr, 121 S. Ct. 2271 (2001). 
I read the judicial review provision as authorizing judicial review of 
the evidentiary basis for detention, and as authorizing the reviewing 
court to order release if the evidence does not support the Attorney 
General's determination that the alien poses a current threat to 
national security. In any event, such review would be constitutionally 
required: aliens may not be deprived of their liberty without notice of 
the basis for the detention and a meaningful opportunity to confront 
and rebut the evidence against them. See, e.g., Landon v. Plasencia, 
459 U.S. 21, 34 (1982); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); 
American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 
1995), Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989); Al Najjar v. 
Reno, 97 F. Supp.2d 1329 (S.D. Fla. 2000); Kiareldeen v. Reno, 71 F. 
Supp.2d 402 (D.N.J. 1999). Unilateral executive detention knows no 
place in American law.
    The PATRIOT Act's mandatory detention provision share many of the 
above flaws. Most problematically, it, too, authorizes preventive 
detention without any showing that an alien poses any current danger to 
national security or a risk of flight. It only requires the Attorney 
General to certify that an alien ``is described'' in various 
deportation or exclusion provisions. These include aliens who the 
Attorney General believes may be mere members of designated foreign 
terrorist groups, and any alien involved in a domestic dispute or a 
barroom brawl in which a weapon or other object was used with intent to 
endanger person or property. Even if such aliens pose no threat to 
others or risk of flight, they are subject to mandatory detention.
    In addition, like the Administration's proposal, the PATRIOT Act 
permits indefinite detention. The PATRIOT Act adds a requirement that 
the government file immigration or criminal charges against an alien 
mandatorily detained within 7 days, but that is a largely irrelevant 
protection, because the provision authorizes indefinite detention even 
of those aliens who prevail in their deportation proceedings. The 
requirement that charges be filed means nothing if the resolution of 
those charges in the alien's favor has no effect on the detention.
    The judicial review provision of the PATRIOT Act marks an 
improvement on the Administration proposal by clarifying explicitly 
that judicial review would include review of the merits of the Attorney 
General's certification decision, and by barring delegation below the 
INS Commissioner of the certification decision. But like the 
Administration provision, it affords the alien no administrative 
opportunity to defend himself, and therefore violates due process.
 d. the bill resurrects ideological exclusion, barring entry to aliens 
                          based on pure speech
    The bill would also amend the grounds of inadmissibility. These 
grounds would apply not only to aliens seeking to enter the country for 
the first time, but also to aliens living here who seek to apply for 
various immigration benefits, such as adjustment of status to permanent 
resident, and to permanent residents seeking to enter the country after 
a trip abroad.
    The bill expands current law by excluding aliens who ``endorse or 
espouse terrorist activity,'' or who ``persuade others to support 
terrorist activity or a terrorist organization,'' in ways that the 
Secretary of State determines undermine U.S. efforts to combat 
terrorism. Section 201(a)(1). It also excludes aliens who are 
representatives of groups that ``endorse acts of terrorist activity'' 
in ways that similarly undermine U.S. efforts to combat terrorism.
    Excluding people for their ideas is flatly contrary to the spirit 
of freedom for which the United States stands. It was for that reason 
that Congress repealed all such grounds in the INA in 1990, after years 
of embarrassing visa denials for political reasons.
    Moreover, because of the breadth of the definitions of ``terrorist 
activity" and ``terrorist organizations,'' this authority would empower 
the government to deny entry to any alien who advocated support for the 
ANC, for the contras during the war against the Sandinistas, or for 
opposition forces in Afghanistan and Iran today. Because all of these 
groups have used force or violence, they would be terrorist 
organizations, and anyone who urged people to support them would be 
excludable on the Secretary of State's say-so.
    The PATRIOT Act shares this problem, and goes further, by rendering 
aliens deportable for their speech. However, it qualifies the 
deportation provisions with the requirement that the speech be intended 
and likely to promote or incite imminent lawless action, the 
constitutional minimum required before speech advocating illegal 
conduct can be penalized. Brandenburg v. Ohio, 395 U.S. 444, 447 
(1969).
                               CONCLUSION
    In responding to terrorism, we must ensure that our responses are 
measuredand balanced. Is it a measured response to terrorism to make 
deportable anyone who provides humanitarian aid to the African National 
Congress today? Is it measured to deport aliens for donating their time 
to a pro-life group that once engaged in an act of violence but no 
longer does so? Is it measured to deport an immigrant who sends human 
rights pamphlets to an organization fighting a civil war? Is it 
measured to label any domestic dispute or barroom fight with a weapon 
an act of terrorism? Is it measured to subject anyone who might engage 
in such activity subject to mandatory detention? Is it measured to 
restore exclusion for ideas? Is it measured to make aliens deportable 
for peaceful conduct fully lawful at the time they engaged in it?
    I submit that the Administration's proposal falls short in all of 
these respects. The overbreadth of the bill reflects the overreaction 
that we have often indulged in when threatened. The expansive 
authorities that the Administration bill grants, moreover, are not 
likely to make us safer. To the contrary, by penalizing even wholly 
lawful, nonviolent, and counterterrorist associational activity, we are 
likely to drive such activity underground, to encourage extremists, and 
to make the communities that will inevitably be targeted by such broad-
brush measures disinclined to cooperate with law enforcement. As 
Justice Louis Brandeis wrote nearly 75 years ago, the Framers of our 
Constitution knew ``that fear breeds repression; that repression breeds 
hate; and that hate menaces stable government.'' Whitney v. California, 
274 U.S. 357, 375 (1927). In other words, freedom and security need not 
necessarily be traded off against one another; maintaining our freedoms 
is itself critical to maintaining our security.
    The Administration's bill fails to live up to the very commitments 
to freedom that the President has said that we are fighting for. As the 
Supreme Court wrote in 1967, declaring invalid an anti-Communist law, 
```It would indeed be ironic if, in the name of national defense, we 
would sanction the subversion of one of those liberties--the freedom of 
association--which makes the defense of the Nation worthwhile.'' United 
States v. Robel, 389 U.S. 258, 264 (1967).

    Chairman Feingold. Thank you, Professor. I thank all the 
witnesses.
    We will now begin five-minute rounds of questions and I 
will begin with some questions for Professor Cole.
    You have just been talking about the mandatory detention 
provisions of the administration's proposed anti-terrorism 
bill. Attorney General Ashcroft asserted at our hearing last 
week that he only sought authority to detain individuals who 
were out of status or otherwise deportable.
    Can you tell us why you believe that original proposal 
actually went a lot farther than that?
    Mr. Cole. Well, first of all, he already has that 
authority, Senator Feingold. Under current law, any alien who 
is out of status can be put into deportation proceedings, can 
be denied bond if there is any basis to believe that he poses a 
risk to national security or a risk of flight, and the INS does 
it all the time. So if that is all he is asking for, he doesn't 
need to ask for it. He already has that authority.
    What he is asking for is the authority to detain people 
indefinitely, even if they win in their deportation 
proceedings. Under current law, he can only hold them as long 
as the deportation process is going on. Once the alien prevails 
and there are no appeals left, the alien has to be freed.
    But under the provision that they propose, even an alien 
granted relief from removal--say, an alien who is eligible for 
asylum and granted asylum, or is eligible for adjustment of 
status and is granted adjustment of status and has the right to 
remain here permanently--would be subject to indefinite 
detention.
    Secondly, what he is seeking goes further than current law 
because under current law he does have to make a showing that 
there is a threat to national security or a risk of flight. 
Under his provision and under the House bill, no such showing 
is required, and I know of no precedent whatsoever for an 
executive branch official to be able to lock somebody up 
without making a showing that the person poses some threat. At 
a minimum, we have to show that the person poses some threat, 
but that is not what is required under either provision.
    Chairman Feingold. Thank you. I think you already alluded 
to the apparent House compromise on the mandatory detention. 
But the compromise, as has been said by the Attorney General, 
would require the Attorney General to file charges of an 
immigration violation against the immigrant within seven days 
of detention, or require the Attorney General to release the 
immigrant if charges are not filed.
    Could you again detail what I thought you said, which is 
that you do not believe that is satisfactory?
    Mr. Cole. That certainly doesn't solve the problem. Even my 
colleague on the panel here, Dean Kmiec, acknowledges that 
there are very serious constitutional problems with authorizing 
any detention without charges beyond 48 hours. The Supreme 
Court has said 48 hours is the limit, except in absolutely 
extraordinary circumstances.
    Yet, the House compromise would give the Attorney General 
the authority to hold without charges for seven days on a mere 
showing that an alien was a member of a group, not that the 
alien did anything wrong, not that the alien engaged in any 
terrorist activity, but merely that is a member of a group. 
That raises serious constitutional concerns.
    The second problem is that the requirement of filing 
charges within seven days is really meaningless if the result 
of the proceeding in which the charges are filed doesn't affect 
the authority to detain. Yes, you have to file charges. Well, 
of course, the Attorney General is going to be able to file 
charges. If he has reasonable grounds to believe that an alien 
is described in the deportation provisions, he will be able to 
file charges under those provisions.
    But the statute provides he can hold the person even if the 
person wins in those deportation proceedings. So it is 
indefinite detention. It has been erroneously reported in the 
press--I am not clear why--as having resolved that problem.
    But I think the important point is that the Attorney 
General today has the authority to detain any immigrant who has 
any kind of status violation and poses a threat to national 
security and a risk of flight. That is not questioned, and 
there has been no showing that that is insufficient to meet our 
concerns about detention.
    Chairman Feingold. I appreciate that clarification.
    At our hearing last week, Senator Kennedy asked Attorney 
General Ashcroft about the ability of immigrants to seek 
judicial review of the Attorney General's decision to detain 
them indefinitely. The Attorney General responded by saying 
that seeking habeas relief is sufficient. He said, ``Habeas can 
be a very broad remedy and you can allege virtually anything in 
a petition. You can allege that the Attorney General either 
relied on false documents or bad information, or made an 
arbitrary rather than a discretionary decision.''
    Do you agree that a petition for habeas relief is 
sufficient to address concerns about judicial review?
    Mr. Cole. Well, I think a petition for habeas corpus that 
permits the court to address the objective basis for the 
detention and to authorize release of any alien who does not 
present a danger or a risk of flight would be sufficient. But, 
unfortunately, that is not authorized under the House bill.
    Under the House bill, there is judicial review in habeas of 
the Attorney General's certification. But, again, all the 
Attorney General has to certify is that he has reasonable 
grounds to believe that an individual has conducted terrorist 
activities, so broadly defined to include, as I said, virtually 
every violent crime.
    We don't allow mandatory, absolute detention of every 
citizen accused of a violent crime, only those whom we find 
either pose a danger to others or are a risk of flight. That is 
a standard we have lived with for 200 years. We have lived with 
it on the criminal side, we have lived with it on the 
immigration side. It is constitutionally compelled. Judicial 
review doesn't really solve the problem if the standard for 
detention doesn't include a requirement of current 
dangerousness or risk of flight.
    Chairman Feingold. Thank you, Professor.
    We will now turn to Senator Sessions for his first round of 
questions.
    Senator Sessions. Thank you, Mr. Chairman.
    Just briefly on the immigration circumstances, maybe 
Professor McGinnis could help us here, but as I understand it, 
under the Constitution we have no requirement to admit anyone 
into the country. No one has a constitutional right to be 
admitted into the United States.
    Is that correct?
    Mr. McGinnis. That is what I understand, Senator.
    Senator Sessions. Therefore, it would flow, it seems to me, 
that as we do in normal criminal law, if you have an ability to 
put someone in jail for a crime, you have the ability to let 
them out of jail on condition during the term of that offense. 
So it seems to me that we could allow persons into the United 
States under restrictions. In fact, we do that, do we not?
    Mr. McGinnis. I understand that, Senator, yes.
    Senator Sessions. So I guess my view of it is that this 
isn't a normal constitutional circumstance where we are dealing 
with an American citizens. Persons are here by permission, and 
if they are here by permission and we have a right to place 
constraints on them and requirements on them, it seems to me 
that a wise nation would try to craft laws that would say that 
those persons who are here should not pose a threat to the good 
order, peace and dignity of the people of the United States.
    Could you comment on that?
    Mr. McGinnis. Yes, Senator. If I might just add to that, I 
think it is very important to understand that it has been well-
known that if, for instance, a country attacked us that we have 
in the past and from the very early Congresses had statutes 
permitting the detention of aliens of that country because they 
owe loyalty to our enemy rather than to the United States. So 
it is just very clear that under those conditions, we can 
detain people indefinitely until we deport those aliens.
    What we face today is a different kind of war. We are not 
being attacked by some nation state. We are being attacked by 
what I would call an irregular militia or a group of 
guerrillas. We certainly don't want to detain willy-nilly 
everyone who could be from a nation that is putting forth these 
guerrillas against us, and that is why we need a finer-grained 
authority that permits the Attorney General to detain people--
as I say, I don't want to get into exactly how long and the 
details of this, but to detain aliens for some period of time 
if they are a threat to national security.
    So we are doing what is common in the common law. We are 
translating the law to deal with a new condition, a totally 
different kind of war.
    Senator Sessions. Well, I would agree with that. As a 
prosecutor, having wrestled with these matters, if you are 
dealing with a bank embezzler, or even a bank robber for that 
matter, the requirements are pretty stringent for surveillance 
and/or detaining one of those individuals. But if you are 
dealing with an alien who you have some evidence less, let's 
say, than proof beyond a reasonable doubt that they are a 
terrorist, what should a wise nation do? That is a question 
that I have wrestled with.
    Mr. Kmiec. Senator, if I might add, this is a topic that 
has not been totally invisible to the Supreme Court of the 
United States. In this last term, they considered the statute 
which this Congress has enacted which authorizes, among other 
things, post-removal detention, and the issue was how long.
    Now, in many cases the INS has difficulty finding countries 
who are willing to take people who have committed felonies in 
this country and who are national security risks and who are 
out of status in terms of immigration. That is no surprise that 
a welcome mat isn't out in every country around the world.
    It is very important to remember that in its most recent 
decision the Supreme Court said there was a reasonable time 
limit for how long you could hold someone after a removal 
proceeding. But they very explicitly said that we were not 
dealing with the circumstance, as Professor McGinnis just said, 
that we confront now. In fact, Justice Breyer articulated that 
we are not dealing with the circumstance of terrorism where the 
ability to hold an alien under those circumstances would be 
different.
    So the Supreme Court has acknowledged what we all know and 
what was stated in your question, that immigration is an aspect 
of our sovereignty; it is an aspect of our foreign policy. For 
that reason, what this Congress provides by way of immigration 
law is the sum and substance of due process for those seeking 
admission to the country of the United States.
    With regard to those who are already here and have some 
form of permanent residency, the Court's standards are a bit 
different, but they are not clearly of the same level as apply 
to American citizens. There is still a differentiation. It is 
not entirely clear where the Court draws the line between 
American citizens and aliens, but the one thing that is clear 
is that those who have been members of groups that have, for 
example, been involved in Nazi persecution have been removed 
from this country for that membership alone, without any 
showing that they were actively involved in the prison camp 
activities in terms of those Nazi atrocities.
    So your question, I think, goes to the heart of the 
emergency situation and the differentiation between aliens who 
are here as our guests and American citizens.
    Mr. Halperin. Senator, would you permit another comment on 
that for just a second?
    Senator Sessions. Yes.
    Mr. Halperin. As has already been hinted at, the Supreme 
Court has made it absolutely clear that the Constitution and 
the Bill of Rights protects people who are in this country 
whether they are citizens or not.
    Senator Sessions. It protects them, but it does not 
guarantee them automatic citizenship.
    Mr. Halperin. It doesn't give them citizenship, but it 
gives them constitutional rights. And if the Government wants 
to move to deport them, it obviously has a broader basis to do 
that, but it has to have the nexus. I think what Professor Cole 
is saying is if this provision said you can detail people who 
you believe were active members or active supporters or knowing 
supporters of a terrorist organization that had planned or 
engaged in terrorist acts in the United States and you could 
hold that person until you deported them, nobody would object 
to that. But that is not what the language says.
    We sit here enacting legislation with one image in mind, 
and 20 years later, by a different administration with less 
respect for civil liberties, it gets used against a very 
different group of people who are not terrorists in a situation 
which nobody contemplated when you enacted the legislation.
    Senator Sessions. Well, what about the situation where a 
person comes here and they have been active in a terrorist 
organization that has declared war on the United States and has 
executed war acts against the United States, and we did not 
know it when they came and we find out later?
    Mr. Halperin. Then you lock them up and deport them.
    Senator Sessions. On what basis?
    Mr. Halperin. On the basis that they pose a threat to 
national security.
    Senator Sessions. Well, the mere fact, Mr. Cole says, that 
they are a member of an organization is not proof that they are 
a threat to the United States.
    Mr. Halperin. No. He said--
    Mr. Cole. If I could respond--
    Senator Sessions. In your comments to the Washington Post, 
you said today's terrorist is tomorrow's government, and that 
we have no right--
    Chairman Feingold. I will let Professor Cole respond to 
that and then that is past the time and we will go to Senator 
Durbin.
    Senator Sessions. You also said that people have a right to 
support the lawful activity of any group they choose.
    Mr. Cole. Right.
    Senator Sessions. So what you are saying is just a member 
of the group and supporting the group is not a basis, as Mr. 
Halperin said, to remove somebody.
    Mr. Cole. That is right, and the reason I say that is 
because the Supreme Court has said it time and time again, and 
it has said it with respect to the Communist Party, which this 
Congress had found was a foreign organization engaged in 
sabotage and terrorism directed at the overthrow of our country 
by force and violence.
    Nonetheless, the Supreme Court said you cannot penalize 
people for their mere association with the Communist Party. 
Whether they are immigrants or citizens, the Court has said 
that that is not permissible.
    To your specific question about someone who comes in who is 
a member of Al Quaeda working to engage in further attacks, 
that person could--
    Senator Sessions. No, not working to engage, just a member. 
We have no proof that they are working to engage. That is the 
problem facing law enforcement. They are here, a member of a 
group, and we don't have the proof to arrest them for planning 
an attack, or we would arrest them.
    Mr. Cole. Two responses to that. One is that the 
Constitution says that you cannot presume from mere membership, 
whether the person is an immigrant or a citizen, that that 
person is engaged in illegal activity.
    Number two, it might be permissible--on the enemy alien 
analogy that Professor McGinnis has identified, it might be 
permissible to target only members of Al Quaeda or whatever 
group it is that attacked us. But this bill does not do that. 
This bill says that any alien who is engaged in any minor crime 
of violence can be subject to mandatory detention without a 
finding of dangerousness.
    So that is not enemy aliens. This is any alien who is 
engaged in a minor act of violence; also, any alien who 
provides humanitarian support to the IRA or the ANC. Those are 
not organizations that are attacking us.
    Senator Sessions. I think you are over-reading that.
    Chairman Feingold. Professor Cole, thank you.
    Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman.
    I would like to just preface this by putting a little 
perspective on this. Prior to September 11, this committee had 
held hearings with the Federal Bureau of Investigation in which 
we asked some very hard questions about their activities and 
their infrastructure, and I think that the testimony was very 
clear that when it comes to the infrastructure to receive, 
evaluate, process and distribute information, the Federal 
Bureau of Investigation is not where it should be.
    What we are debating today are changes in the law to 
provide additional information to the Federal Bureau of 
Investigation. There are many of us who think this is an 
important debate and that there are elements of their request 
that should be granted, but I want to go back to first 
principles here.
    Before we expand the universe of information, we ought to 
ask the basic question as to whether or not the archaic 
computers and information systems currently at the Federal 
Bureau of Investigation are up to speed to fight this war. I 
think the answer is clear: they are not.
    I am going to address the constitutional issues and I am 
glad we are making this the focus of the hearing, but I hope 
that this committee, and particularly the anti-terrorism bill, 
will look to this issue, too, because giving all of the 
opportunity for accumulating information to the FBI and no 
wherewithal to process it, evaluate it, share it and use it to 
defend America is, I think, at best, a useless gesture.
    Mr. Kris, I have read the letter which you have brought 
here, and it was very clear to me that the Department of 
Justice is trying to analyze the court cases when it comes to 
the FISA investigations as opposed to the Fourth Amendment.
    The thing that I find interesting is that the courts have 
said, I think, consistently we are going to draw a pretty clear 
line between domestic security and foreign intelligence. Those 
are two different worlds, and when it comes to domestic 
security, that is where we are comfortable. When it comes to 
establishing probable cause for the commission of crime, that 
is where the courts can help. But when it comes to foreign 
intelligence, this is a new world; this is the executive 
branch. There are areas there where we are not altogether 
certain that we can make the fine distinctions that are 
important to draw the line.
    Now, I think that has been the basis of the law and the 
creation for these FISA authorities, but I will also tell you 
that I think your concluding argument from the Department of 
Justice here, and I am going to quote a couple of lines from 
it, really tells us what we are up against as a Nation and as a 
committee evaluating this.
    It says in this letter which has been sent by Assistant 
Attorney General Dan Bryant, ``September 11th's events 
demonstrate that the fine distinction between foreign 
intelligence-gathering and domestic law enforcement has broken 
down. Terrorists supported by foreign powers or interests lived 
in the U.S. for a substantial period of time, received training 
and killed thousands of civilians by hijacking civilian 
airlines. The attack, while supported from abroad, was carried 
out from within the United States itself and violated numerous 
domestic criminal laws. Thus, the nature of the national 
security threat, while still involving foreign control and 
requiring foreign counterintelligence, also has a significant 
domestic component which may involve domestic law 
enforcement.''
    What I read from this is that this line of demarkation, 
according to the Department of Justice, is gone. And if that 
line is gone because of the nature of the threat against the 
United States, then I think we have a larger question than we 
are even addressing today, and that is whether the body of law 
that has brought us to this point is sufficient.
    If we accept that premise, if that is where we are 
starting, that we can no longer draw a line between foreign 
intelligence and domestic security, and if we are going to 
protect America we have to err on the side of assuming 
everything is foreign intelligence and the Fourth Amendment 
does not apply, then I think things have changed dramatically.
    Mr. Kris, would you respond?
    Mr. Kris. Yes. I don't think it is our contention that 
foreign intelligence includes everything. None of our 
provisions would seek to change the definition of the term 
``foreign intelligence information'' in the bill or in FISA 
right now.
    I think what you are putting your finger on is a breakdown 
in the rigid distinctions that used to exist. In the Cold War 
era, we did law enforcement surveillance on the Mafia or on 
drug dealers and we did counterintelligence surveillance on 
countries that were spying on us, and there was a fairly clear 
distinction between those two worlds. With the increase in 
terrorism and the expansion of some of our criminal laws as 
well, I think there is an increasing coming together of those 
worlds.
    The question, I think, that is presented by our amendment 
to FISA with respect to purpose is how much foreign 
intelligence purpose is required to keep us under the foreign 
intelligence constitutional standards and not under the 
ordinary criminal standards.
    Senator Durbin. May I just say at this point, as I 
understand it, under the old standard that we are addressing 
you had to say to establish this FISA eavesdropping or 
surveillance that it was the purpose, the gathering of 
information for foreign intelligence.
    Mr. Kris. That is what the statute says currently.
    Senator Durbin. And the proposed amendment says ``a 
purpose.'' Now, the courts have said once you get in pursuit of 
foreign intelligence information, you can develop information 
that leads to a criminal prosecution. They have acknowledged 
that fact. It may lead to that.
    Mr. Kris. Yes.
    Senator Durbin. But if you lower that standard at the 
start, at the threshold, and say that it just has to have some 
foreign intelligence connection or nexus and from that point 
forward you can go to criminal prosecution, what is left of the 
Fourth Amendment in these cases?
    Mr. Kris. Well, I think what our letter says and what the 
current--there is a lot of different legislation, I guess, that 
is on various tables, but the letter here reflects ``a 
significant purpose,'' not just ``a purpose.'' And our 
conclusion as reflected in the letter is that that is enough to 
satisfy the Fourth Amendment.
    ``A significant purpose,'' I think, is a meaningful 
standard. It would exclude an insignificant purpose. But what 
it also reflects is that in many of these cases, not in all of 
them, there will be law enforcement equities that are 
implicated by the activity that is under surveillance.
    We need to be able to coordinate between our law 
enforcement authority elements in the Government and our 
intelligence in the Government so that we can have a coherent, 
cohesive response to an attack like the one we experienced on 
September 11 and not end up in a situation where we have a 
splintered, fragmented approach and the left hand and the right 
hand don't know what each other is doing.
    Senator Durbin. Mr. Chairman, I am sorry that the others 
can't respond because I would like to hear their response. My 
time is up. I would like to make one point in closing.
    I sat down last week with a man who works for the 
Department of Justice who has spent the last several years 
prosecuting Osama bin Laden terrorists. He probably knows more 
about the subject than almost anyone. I said to him, what is 
the one thing you need to be more effective in your prosection? 
He said we have to look at this FISA provision; we have to find 
a way to deal with the line that has been created that doesn't 
work when it comes to terrorism.
    That is the struggle I am facing in my mind here trying to 
resolve his need to stop terrorism and our need to protect 
these constitutional rights. I hope we will have a chance for 
another round of questions.
    Chairman Feingold. Thank you, Senator Durbin.
    Let me just allow Mr. Halperin and Mr. Berman to quickly 
respond to that, and then we will go to the second round.
    Mr. Halperin. Can I just make three quick points? One is we 
now have had an admission by the Department of Justice that it 
is no longer prepared to defend the constitutionality of its 
original proposal which it asked the Congress to pass in five 
days. I urge you to underline the need to read the rest of it 
very carefully because there are things in there, as well, 
that, on being pressured, they will not be able to defend.
    Second, the Justice Department says that it is not trying 
to change the definition of foreign intelligence information, 
but it doesn't use it in the bill. This bill would be immensely 
improved if everywhere the phrase ``foreign intelligence 
information'' appears, you put a comma, ``as defined in FISA,'' 
comma. I urge you, based on what was said, to do that.
    Third, I think we are in a new world, and I speak here only 
for myself, in dealing with foreign terrorism that operates in 
the United States exactly as described in the letter. But the 
changes we make to deal with that ought to be limited to 
dealing with terrorist organizations that operate abroad and in 
the United States.
    So if you went through the bill and everywhere you talked 
about information-sharing or holding aliens in various 
situations, if you limit it in this case to information 
relating to terrorist groups that operate in the United States 
and abroad, the information-sharing and all the provisions, 
this bill would be much less dangerous and much less troubling 
to all of us.
    The problem is the Justice Department is trying to get that 
authority not just for this disaster that we have in our minds 
and this very real threat, but for all counterintelligence. We 
need to remember that a different Justice Department thought 
the whole anti-war movement was being directed from Hanoi and 
therefore was a foreign counterintelligence organization. Let's 
limit this and we will make it much better.
    Chairman Feingold. Thank you.
    Mr. Berman, briefly, please.
    Mr. Berman. It can be limited. We limit it to terrorism or 
we do the dual-tap authority and coordinate between the two 
branches, which the Senate Intelligence Committee recommended.
    Finally, I think the real danger here is a catch-22. The 
constitutional issue will get raised, but it will get raised in 
a criminal prosecution where, if the Justice Department is 
wrong, there will be suppression of evidence and a terrorist 
may get off.
    The problem with the innocent target of this expanded 
surveillance is that they may never know, because there is no 
notice, it goes on forever. And when they terminate it and say 
there are no grounds here, it never goes to them. So the 
violation of the Constitution has no remedy. That is why 
constitutional policy is important and that is why the Congress 
has a role here.
    Chairman Feingold. Thank you, Mr. Berman.
    We will start a second round.
    Back to Professor Cole, I have a question that does not 
relate directly this bill of the administration, but addresses 
the Justice Department's conduct in response to and in pursuit 
of the investigation of the events of September 11. Obviously, 
they have a very tough job to do.
    News reports indicate that the Justice Department has 
detained more than 500 people, most of them Muslims and Arabs, 
since the September 11 attacks, but the Justice Department has 
not charged a single person with a crime related to the 
attacks. Again, I believe that the Attorney General and the FBI 
Director, Mr. Mueller, and the men and women at the Justice 
Department have worked incredibly hard and have for the most 
part conducted themselves in an exemplary fashion.
    But some have raised concerns that innocent people have 
been unfairly targeted and detained during the course of this 
investigation. In response, Director Mueller has said that his 
agency is targeting people ``based on predications that the 
individual may have information relating to the attacks.''
    Let me ask two questions in connection with that. First, do 
you believe that the FBI may be casting a net that is too wide 
and ensnaring innocent people in its grasp? Secondly, what do 
you believe can be done to ensure that innocent people are not 
unfairly targeted and detained?
    Mr. Cole. Well, obviously I am not privy to the FBI's 
information with respect to each of these 500 people, so it is 
hard to make any kind of definitive judgment without that 
information.
    I do think it is fair to assume that when 500 people have 
been locked up and none of them have been charged with a crime 
that many, and probably most of those people are entirely 
innocent of the crime. What law enforcement is doing is using 
the pretext of other offenses, sometimes minor traffic 
offenses, to lock them up for extended interrogation in 
custodial settings. I think that raises some questions of 
policy. I don't think it is illegal. Pretextual law enforcement 
is permitted.
    That brings me to the second point, which is that the fact 
that the Government has this power, the fact that the 
Government can respond by going out and locking up 500 people 
without charging any of them with being involved with the crime 
illustrates how expansive our powers already are, and suggests 
that the kinds of expansions that the Government is seeking, 
particularly in treating people as guilty solely for their 
political associations, and then also authorizing indefinite 
detention of those people, are unnecessary.
    Chairman Feingold. Thank you, Professor.
    Mr. Berman, Dean Kmiec writes in his testimony that the 
extension of trap and trace authority to the Internet poses no 
constitutional issue because the courts have previously held 
that pen register information is not subject to constitutional 
protection, and that if the proposed language is explicit that 
the content of the communication is not included.
    You have talked about this some. Do you agree that the 
legislation is clear enough that it would not permit the 
Government to obtain content under this new authority, and 
would you specifically address whether the House bill provides 
adequate protection?
    Mr. Berman. Yes. I think the Court has said in a pen 
register, where it is gathering dialed numbers, that does not 
pose a constitutional issue. But the pen register today, both 
its technology--the House and Senate both wrestled with 
Carnivore, the ability under a pen register to gather both the 
content and the transactional information off a switch in a 
computer network.
    The language in the statute does not track that it is 
looking for IP addresses or the origin and destination, as the 
Attorney General testified before this committee. It adds a 
series of terms without explanation or legislative history, and 
we are dealing with a plain reading which talks about dialing, 
routing, addressing, signaling.
    When we have a discussion with the Justice Department, they 
say ``we don't want to include the subject line of e-mails,'' 
which is content. A whole message and a series of messages tell 
you the content. You understand this technology.
    The initial URL may be an address, but then if you get 
beyond the initial URL because you are looking for the 
pornographic encrypted page--there have been reports that there 
may have been that kind of page on the Internet. Once you are 
scrolling through those pages under a pen register statute, you 
are raising constitutional questions because you are collecting 
significant content.
    The Justice Department comes back and says the section does 
say we don't want content. But when you discuss with them what 
do they mean by content, they say ``what do you mean by 
content?'' I think we need to clarify that in the statute.
    Chairman Feingold. Let me ask you another one concerning a 
matter that you raised, and I appreciate it, the computer 
trespass provision. It sort of reads to me that it could apply 
to a person who has used his work computer for personal 
purposes, in violation of his employer's computer use policies. 
Is that the case?
    Mr. Berman. I think that that is a plain reading of the 
statute. Someone thinks that someone is using their computer 
time to engage in gambling. Does that mean that the FBI can be 
called in and given permission to collect all of the e-mail and 
the traffic on that computer at that address without getting a 
Title III warrant? I think it says that.
    They say it only applies to denial of service attacks, 
where you have an emergency situation. We can draft emergency 
situation language for denial of service where something is 
happening at the computer and the ISP calls in the FBI and 
there is no time to get a warrant and collect that information. 
But it goes far beyond that. It says ``any unauthorized use.'' 
Does that mean violating the terms of service?
    The Justice Department has now, I believe, said, well, 
maybe terms of service don't count, or we can take that out. 
But since you go through a network, you may have no terms of 
service relationship with that ISP, and therefore they will 
give you permission to look at any funny business. That 
requires us to go back and say why can't they get a Title III 
warrant?
    A last comment. One of the problems is they are talking 
about impediments, removing impediments. The Constitution and 
all of the procedures that we set up in these laws are 
impediments. We protect our civil liberties with impediments. 
It is judicial review, it is auditing, it is keeping track, it 
is having a justification. Those are impediments and it slows 
up the process.
    I believe we need to have those impediments to protect our 
Constitution. It is a bureaucratic nightmare for law 
enforcement and I think we can reduce it by carefully crafting 
it, but we can't eliminate it because those impediments are 
what keeps us from being a police state.
    Chairman Feingold. Thank you very much, Mr. Berman. I 
appreciate the answer.
    Senator Sessions?
    Senator Sessions. I would yield to Senator Specter.
    Chairman Feingold. Senator Specter?

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you very much, Senator Sessions, for 
yielding to me at this time. We are in the hearing room 
adjacent considering bio/chemical weapons and I am ranking on 
that subcommittee, but I wanted to come over here for a few 
minutes.
    Chairman Feingold. Thank you.
    Senator Specter. I just learned that the subcommittee was 
holding this hearing, and have been pressing for hearings 
before the full committee because the full committee is going 
to have to act, and act very promptly. I have expressed my 
concern about the delays because there could be some 
intervening act which could be attributable to the lack of 
congressional action on the subject, and I believe that we have 
to be careful as we craft this legislation.
    A week ago yesterday, Attorney General Ashcroft was in 
talking about the need for detention of aliens where there was 
a deportation process. But the bill that they had presented did 
not provide just for detention where there was detention, but 
it was broader. I expressed the view that the authority existed 
now, or if it didn't, we would give them that authority, but 
not the way the statute was drafted, which left it up to the 
Attorney General's discretion without any standards. Similarly, 
on the issue of the Foreign Intelligence Surveillance Act, the 
Attorney General testified that he only wanted content where 
there was a statement of probable cause, but that is not the 
way the bill worked.
    Senator Hatch has scheduled a meeting of Republican 
Senators for this afternoon, as I understand it, to tell us 
what the bill is. Frankly, that concerns me because in the 
hearing we had a week ago yesterday the Attorney General 
testified for an hour and 15 minutes and the real technicians 
who were there--the Deputy Attorney General, the Assistant 
Attorney General, Criminal Division, and the Assistant Attorney 
General, Legal Counsel--just shuffled some papers back and 
forth on some of the precise points.
    We have seen in past years a number of U.S. Supreme Court 
decisions invalidating acts of Congress because there has not 
been a sufficient deliberative process. The Supreme Court says 
they have the authority to declare acts of Congress 
unconstitutional when, in effect, they are not thought through.
    Now, I have real questions about that on separation of 
powers, but they do have the last word, and if we do not have 
the deliberative process at work here--and I want to hear the 
specifics and I am about to ask you a question, Mr. Kris. We 
may have to do it in closed session.
    Seven days is a protracted period of time, as the House 
calls for detention, and changing the Foreign Intelligence 
Surveillance Act to ``a significant purpose'' has a 
significant--pardon me for using that word--problem 
constitutionally. But maybe so, but maybe so, if we have a 
showing as to what you need on intelligence-gathering.
    In this room, we had protracted hearings on Wen Ho Lee as 
to Attorney General Reno's declination of a FISA warrant, and 
the difference between that and probable cause and that whole 
range of technicalities. So it may be that, on a balancing test 
where this is the quintessential area, police power versus 
constitutional rights and a terrorist threat--everybody 
acknowledges the horrendous problem we face and this is a 
balancing matter, but we have to know the details.
    Mr. Kris, what justification is there factually for 
changing the standards under the Foreign Intelligence 
Surveillance Act? Are you prepared to tell this subcommittee, 
and hopefully this committee, that there is intelligence data 
out there which can be gathered with a lesser standard under 
FISA that you can't get on a probable cause statement which is 
important for national security?
    Mr. Kris. Well, consistent with my initial statement, I 
will try to answer your question as fully as I can. There may 
be a need to address it in a different forum.
    Senator Specter. We are prepared to clear the room of even 
Mr. Berman and Professor McGinnis and Dr. Halperin and the 
whole works. We are prepared to clear the room or take you into 
the side room.
    Mr. Kris. I am at your disposal in that regard, but let me 
begin with what I can say openly, and that is that the 
``purpose'' amendment that we are advancing--and ``significant 
purpose'' is the current language--I think is not so much 
designed to expand the kinds of information that we can obtain, 
but rather to ensure that when we get the information, we can 
coordinate properly between the intelligence side and the law 
enforcement side of the Government.
    Senator Specter. Well, you want to make it available to law 
enforcement.
    Mr. Kris. Yes.
    Senator Specter. That is a change. ``The purpose'' to ``a 
significant purpose'' is a big change.
    Mr. Kris. It is a change.
    Senator Specter. But do you have a justification for it? Do 
you face today problems which you can say to the Congress 
warrant this expansion? If you do, I am prepared to give it to 
you if there is a constitutional basis to defend it later 
before the Court.
    Mr. Kris. Well, constitutionally, of course, we do have the 
letter that has come to you. As to the practical need for this, 
let me say what I can say here.
    Senator Specter. The letter? It doesn't weigh very much in 
a Supreme Court argument.
    Mr. Kris. Well, the letter obviously has legal analysis in 
it that would be advanced in a brief if the issue were 
presented to a court.
    Senator Specter. It is really more than a matter of legal 
analysis. It is a matter of a factual presentation as to what 
your specific factual needs are.
    Mr. Kris. And with respect to that, let me say sort of two 
things. First, I heard Senator Durbin earlier discuss the fact 
that he had met with Pat Fitzgerald, one of the UBL prosecutors 
from New York, and Mr. Fitzgerald explained to him and Senator 
Durbin recounted here the need for this.
    There is also, of course, the GAO report, issued in July of 
2001, commissioned by Senator Thompson, that says in the first 
two sentences, ``Coordination between the FBI and the Criminal 
Division has been limited in those foreign counterintelligence 
cases where criminal activity is indicated and surveillance or 
searches under FISA may be employed. And a key factor 
inhibiting this coordination is the concern over how the FISA 
court or another Federal court might rule on the primary 
purpose of the surveillance or search in light of such 
coordination.'' The GAO is a public document and it goes on at 
length. There is also, of course, the AGRT report on the Wen Ho 
Lee case which the Congress has in its full and unclassified 
form which recounts this in some detail.
    Senator Specter. Well, the red light is on and I will 
respect the red light, and I thank the subcommittee for letting 
me participate even though I am not on the subcommittee. I 
think this really, with all due respect, should have been at 
full committee because we all have to act on it right away.
    Mr. Kris, I make a formal request of the Department through 
you to make available to subcommittee members, and I will be in 
attendance and I think others would be, in closed session, if 
necessary, and today promptly the specifics as to what is 
happening out there which leads you to conclude that you need a 
different standard under FISA to be available for the criminal 
prosecutors and what you need with respect to the detention.
    If you can make a factual showing that can be defended 
constitutionally, I think the Congress is willing to do it. I 
even noticed Dr. Halperin and Mr. Berman nodding in the 
affirmative. You don't get their affirmative nods too often on 
an expansion of law enforcement powers.
    Thank you very much, Senator Sessions. Thank you, Mr. 
Chairman.
    Chairman Feingold. Thank you, Senator Specter.
    Let me just note that I agree with Senator Specter's 
concern that there should be a full committee hearing on this. 
The committee was prepared to do it. The objection came from 
your side of the aisle.
    Senator Specter. The full committee was prepared to do it?
    Chairman Feingold. To have a hearing on this.
    Senator Specter. When?
    Chairman Feingold. Today. We had preferred that this would 
be a full committee hearing.
    Senator Specter. And there was an objection from 
Republicans?
    Chairman Feingold. As I understand it, on that side of the 
aisle.
    Senator Specter. I will take that up with President Bush.
    Chairman Feingold. Senator Sessions, if you would do your 
last round, I am going to try to conclude the hearing so that I 
can attend a meeting with the Secretary of State.
    Senator Sessions. Mr. Chairman, I don't know that I will 
pursue this any further. I know we do have a time crunch. I 
would offer for the record a letter from the Fraternal Order of 
Police supporting this legislation.
    Chairman Feingold. Without objection.
    Senator Sessions. Also, letters from four former Attorneys 
General--Griffin Bell, under President Carter, and Thornburgh, 
Barr and Meese--all supporting this legislation.
    Chairman Feingold. Without objection.
    Senator Sessions. I would just say that most of the issues 
we are dealing with--I guess Dean Kmiec referred to policy and 
this legislation being crafted carefully not to conflict with 
the Constitution. I think most people don't believe it 
conflicts with the Constitution. It does require the amendment 
of statutes concerning pen registers where Congress has placed 
extra-constitutional restrictions on pen registers, trap and 
trace. It doesn't mention mail cover, but we have rules for 
mail covers that are done. So I have felt that for the most 
part we are doing the right thing.
    With regard to people who are here by permission, 
immigrants, I feel like we have a reasonable basis to be more 
restrictive. Even if we don't have proof beyond a reasonable 
doubt that they are participating in an activity that plans to 
kill Americans, we may have sufficient proof to ask them to go 
home. So that is what we are wrestling with.
    I do believe it is important for us to slow down and be 
careful. I know a lot of people are scared that we are going to 
fundamentally deprive ourselves of constitutional rights. I 
don't see that here in this legislation, but it doesn't hurt to 
slow down and be careful.
    I am, as Senator Specter has said, a bit concerned that a 
small group on our committee seems to be about to deliver us a 
bill which we have not read or seen. I have had some interest 
in it, and I know he has and I know Senator Kyl has been 
interested in these issues for years. It is a little bit 
frustrating, frankly, and that could be another cause for 
delay.
    Thank you, Mr. Chairman.
    Chairman Feingold. I thank you.
    I would ask unanimous consent that a statement by Senator 
Thurmond be included in the record, without objection.
    We will hold the record of the hearing open for a week, if 
the witnesses or other organizations wish to submit additional 
materials.
    I also ask unanimous consent to put a statement by Senator 
Maria Cantwell into the record, without objection.
    That brings us to the conclusion of the hearing. As we all 
know, the anti-terrorism legislation is on a fast track and 
will be considered, in all likelihood, by the Senate soon. So I 
do think it is terribly important that we had this hearing 
today, and I think the Senate and the Nation will benefit from 
your testimony.
    Let me also reiterate something that the Chairman said when 
he was here. This hearing focused on the constitutional issues 
arising from the anti-terrorism legislation. I also believe 
that we should review the serious civil rights issues that have 
arisen as a result of our Nation's response to the September 11 
attacks, like acts of violence and discrimination against Arab 
Americans, Muslim Americans and South Asian Americans. We are 
looking forward to working with Senator Leahy to arrange for a 
hearing of the full committee, or at least the subcommittee, on 
that matter.
    I thank you, and the hearing is adjourned.
    [Whereupon, at 11:26 a.m., the subcommittee was adjourned.]
    [Questions and submissions for the record follow.]
    [Additional material is being retained in the committee 
files.]

                               QUESTIONS

         Questions submitted by Senator Sessions for David Kris

  1. Practical Effect of Changing ``the purpose'' to ``a significant 
                           purpose'' in FISA
    Mr. Kris, under the Foreign Intelligence Surveillance Act (FISA), 
to issue a surveillance order, the court must find probable cause that 
the target of the surveillance is an agent of a foreign power, 
including a member of an international terrorist group, and the 
government must certify that ``the purpose'' of the surveillance is to 
obtain foreign intelligence information.
    Under current law, I understand that our intelligence personnel can 
share information with our criminal investigators. However, if the 
criminal investigators provide direction back to the intelligence 
officers concerning what evidence is needed to convict, for example, a 
thief who is about to supply a terrorist with stinger missiles, the 
government must either obtain a criminal surveillance warrant, if 
possible, or not take the direction from the criminal investigators. 
Thus, in a hypothetical case, if the government does not have 
sufficient information to identify the thief and obtain a criminal 
surveillance warrant, it may not be able to stop a sale of stinger 
missiles to a terrorist by arresting the thief. Is that correct?
    If Congress changes ``the purpose . . . to obtain foreign 
intelligence information'' to ``a significant purpose,'' would FISA 
then allow criminal investigators to provide more assistance to our 
intelligence officers in gathering evidence and arresting a suspect for 
violation of criminal law before he supplies deadly weapons to a 
terrorist?
             Constitutionality of ``a significant purpose''
    Mr. Kris, is it true that the ``primary purpose . . . to obtain 
foreign intelligence information'' test was developed prior to the 
enactment of FISA and was the product of a Fourth Amendment balancing 
test that weighed the suspect's privacy interests against the 
President's power to protect the people from foreign threats?
    Is it true that the primary purpose test dealt with determining 
when the Government could conduct warrantless surveillance?
    Is it correct that the Foreign Intelligence Surveillance Act 
(FISA), which Congress enacted in 1978, statutorily requires a warrant 
to conduct foreign intelligence surveillance even when the Constitution 
does not?
    Is FISA more restrictive on the Government than the Fourth 
Amendment to the Constitution?
    If the statutory standard were lowered from ``the purpose'' to ``a 
significant purpose,'' would the government still have to meet the 
constitutional standard to obtain a FISA warrant from a court to 
conduct surveillance?
    And to take evidence gathered under the FISA warrant to trial, 
would the Government have to convince a second judge that the evidence 
was gathered consistently with the Constitution?
    And during time of war, when the President's commander-in-chief 
powers must be considered in the Fourth Amendment balance, could these 
courts reasonably hold that a significant purpose to gather foreign 
intelligence would suffice when the Government obtains a warrant to 
conduct the surveillance?
    Would changing the FISA standard to ``a significant purpose'' 
enable the Government to conduct FISA surveillance on ordinary 
Americans or even criminal suspects for whom a court does not find 
probable cause to believe that they are agents of a foreign power?

                                

                       SUBMISSIONS FOR THE RECORD

  Statement of Hon. Maria Cantwell, a U.S. Senator from the State of 
                               Washington

    The events of September 11th have changed us as a country forever. 
The question that remains open is in what ways exactly will the change 
be reflected? We must do all that we can to stop terrorism by finding 
and disrupting terrorist activities here and abroad. But we must do 
this without compromising the values that make Americans unique and 
have allowed us to become great--value for the personal autonomy and 
rights of the individual and for the tolerance of all regardless of 
race or religion.
    While I believe it is vitally important for our country to address 
pressing issues of national security including the gathering of 
intelligence information and rethinking how we coordinate domestic 
security at our borders, we must not lose sight of the principles our 
country is founded upon. We cannot and must not let the events of 
September 11 cause us to indulge in violence against others based on 
their race or their religious beliefs, and we cannot let fear of 
further terrorist events cause us to make decisions now that do damage 
to historic respect for the civil liberties and the privacy of 
individuals.
    I have been disheartened that my state has seen incidences of hate 
crimes against ArabAmericans, Muslims and Sikhs in the wake of the 
attacks. In the most serious incident by far, an individual has already 
been charged with shooting at several people and setting fire to the 
cars of worshippers outside a mosque in Snohomish. In addition, 
Kulwinder Singh, a Sikh cabdriver, was harassed and physically 
assaulted by a passenger in King County, and over 40 students from the 
United Arab Emirates have withdrawn from Washington State University. 
In Shoreline, a city just outside Seattle, people apparently scoured 
the yellow pages searching for the word ``Arab'' only to leave a 
frightening message on the answering machine of the Arabic Language and 
Translation Service. I condemn this type of violence and hatred which 
merely compound the horror of loss of life as a result of the terrorist 
attacks.
    Perhaps more alarming even than the physical violence and threats 
that have been made, are the new prejudices that face many of our 
citizens and residents. Our Arab and South Asian immigrants to 
Washington state sought to move to America not just for economic 
opportunity but for a way of life that embraced tolerance and 
diversity. Yet today they live in fear of their neighbors. People of 
Islamic faith, and others who fear that they may be confused for 
someone of Islamic faith hide in their homes, fearful they will be the 
target of persecution. This type of discrimination cannot stand. We 
cannot let the fear of unknown terrorists cause us to engage in the 
very type of intolerance and racial segregation that have dogged so 
many countries.
    We in Washington state have amongst us, as reminders of the 
consequences of intolerance, many of the Japanese who were either 
interned themselves or have family members who were victims of 
internment. We cannot forget how unjustified our treatment of them was, 
and we must learn from them and our history that the face of the enemy 
must be distinguished from the physically similar face of our neighbors 
who are loyal Americans. We must not pass laws that give the government 
unfettered authority to indefinitely detain people who are legally in 
this country or who are permanent residents of this country. To do so 
is to reject the history and the lesson of the Japanese internment.
    I have confidence that Americans are large enough in spirit to meet 
the challenge of tolerance, and that these instances of physical 
violence will not continue. I urge that we take a look inside ourselves 
and recognize that the pain we feel is the also the pain felt by people 
of Islamic faith, and others of Arab descent. They too are Americans. 
They are people of faith. There is no real ``Islamic terrorist''--some 
terrorists may believe in Islam, others may have other religious 
beliefs--but it is the terrorism that we abhor, not the true religious 
belief, or those who simply share those beliefs.
    I also believe that we face another challenge right now. That 
challenge rests largely with those who are members of the Judiciary 
Committees here in the Senate and in the House--to stop and reflect how 
we can continue to balance the unique freedoms and rights that come to 
us as American citizens with the need to track and disrupt terrorists 
at work in this country and abroad.
    We have good reason to change our laws to improve the ability of 
our law enforcement and intelligence communities to do their job. And I 
strongly support many of the changes this Committee has been 
considering. I am pleased that progress has been made on most of the 
contentious provisions and am very hopeful that we will be able soon to 
pass the legislation needed to address the immense problem of terrorism 
in this country and around the world.
    However, we are moving at an incredible pace on some changes in law 
that will potentially effect Americans for a long time to come. Much of 
the debate really centers around lowering the standard for electronic 
eavesdropping by the government without abridging Americans' Fourth 
Amendment protection against unreasonable search and seizure.
    I am particularly concerned about how we may expand wiretap 
authority under Foreign Intelligence Surveillance Act--make no mistake 
about it--if not done right, these changes can affect the ability of 
the government to wiretap the lines of American citizens--not just 
foreign terrorists.
    Further, I hope that we can enact the provisions authorizing law 
enforcement to access certain aspects of electronic communications in 
the same way they can get telephone numbers. But we must make sure that 
the scope of the provision is narrow and does not allow access to the 
content of communications without a separate showing to a judge.
    I believe that law enforcement does need some new tools to meet the 
challenge of fighting terrorism. However it is even more crucial to 
promote the sharing and coordination of information among agencies that 
have traditionally had separate responsibilities that now intersect in 
the effort to fight terrorism. I am determined that the fight against 
terrorism requires not just law enforcement tools and wiretaps but 
rather requires us to develop the single best most coordinated effort 
of sharing and analyzing information to disrupt terrorist planning and 
rout out terrorist sympathizers. And a key part of this effort must be 
the development of a better system for granting visas such that we know 
who is coming in to our country and we are able to stop them at our 
borders. Technology now exists that allows agencies to share 
information about suspected terrorist affiliates in real time and such 
capabilities should be better utilized.
    While I am not the first or the last to say it, it remains an 
essential truth that if we surrender our unique freedoms and rights, 
that the terrorists have inflicted a harm even greater than the 
calamitous deaths of thousands of innocent civilians and the 
destruction of symbols of American innovation and power. We must not as 
citizens or as legislators act out of fear to damage our tradition of 
tolerance or curtail our rights and liberties.

                                

               Federal Law Enforcement Officers Association
                                       Washington, DC 20044
                                                    October 3, 2001

Senator Strom Thurmond
United States Senate
Russell Building, Room 217
Washington, DC 20510

    Dear Senator Thurmond:

    On behalf of the 20,000 members of the Federal Law Enforcement 
Officers Association (FLEOA), I wish to inform you of our strong 
support of the Administration's proposed anti-terrorism measures. FLEOA 
urges you to support the passage of these measures with all due speed.
    The Administration's proposed initiatives focus on giving this 
nation's law enforcement officers the needed tools to investigate and 
eventually bring to justice the terrorists responsible for the 
September 11, 2001, attacks on our Nation. Certain groups and 
individuals are opposed to these initiatives due to their concerns 
regarding our civil liberties. FLEOA too holds dear our civil 
liberties, and legitimate concerns we respect. However, the legislation 
currently under consideration will allow Americans to enjoy their civil 
liberties and at the same time enable law enforcement to hunt down 
terrorists. Certain tools proposed for law enforcement's that raise 
concerns come with judicial review before their use can be implemented. 
As an organization on the front lines of America's fight against 
terrorist, we remind everyone, allowing terrorist's unfettered access 
to our shores does not enhance American's civil liberties.
    The Administration's measures appropriately address the national 
security issues that should be the overriding concerns of all. The 
proposals will ensure we can live in this great country and continue to 
enjoy our rights and liberties in peace. FLEOA urges the quick passage 
of this legislation.
                                           Richard J. Jallo

                                

                                  Fraternal Order of Police
                                      Washington, DC, 20002
                                                 September 24, 2001

The Hon. Orrin G. Hatch
Ranking Member,
Committee on the Judiciary
United States Senate,
Washington, DC 20510

    Dear Senator Hatch:

    I am writing on behalf of the more than 299,000 members of the 
Fraternal Order of Police to advise you of our strong support of the 
Administration's proposed anti-terrorism measures.
    On 11 September, the United States fell victim to an evil and 
cowardly attack, perpetrated by individuals with a complete and total 
disregard. for human life and the law of nations. The victims of these 
attacks and their families demand justice, and the assurances of the 
Federal government that everything that can be done to ensure the 
future safety and security of our nation will be done. The pleasures 
brought forward by President Bush and Attorney General Ashcroft 
appropriately address these concerns.
    Not only will the Administration's proposed measures provide law 
enforcement with the tools they need to quickly hunt down the criminals 
responsible for this unprecedented assault on America, but will also 
bolster our efforts to protect and defend this great land. These 
measures are not new, but they represent what is right and what is 
needed at this critical moment in our nation's history,
    Some will suggest to you that these proposed measures threaten to 
curtail the civil liberties which we all hold dear. As the elected 
representative of those who place their lives on the line in defense of 
American rights arid liberties, I strongly and respectfully disagree 
with that assertion, The proposed legislation will ensure that those of 
us who live in the United States can continue to enjoy our rights and 
liberties in peace, and without fear of terrorists and the mechanisms 
which support them.
    On behalf of the membership of the Fraternal Order of Police, I 
lend my voice to the millions of citizens asking Congress to enact 
these proposed measures with all possible speed, and urge you to work 
with President Bush to give us the tools we need to protect all 
Americans. Please do not hesitate to contact me, or Executive Director 
Jim Pasco, if we may be of any assistance or provide you with 
additional information.
            Sincerely,
                                                Steve Young
                                                 National President

                                

                             German American Education Fund
                                         Glenview, IL 60025
                                                    October 8, 2001

The Hon. Russell D. Feingold,
Chair, Subcommittee on the Constitution,
Federalism and Property Rights
Committee on the Judiciary
United States Senator
Washington, D.C. 20510

    Attention: Farhana Khera, Esq. Majority Counsel

    Dear Senator Feingold:

    Please include the attached letter, dated October 8, 2001, in the 
hearing record for the above referenced hearing held on October 3, 
2001. It contains pertinent information regarding the US government's 
violations of civil liberties pursuant to the Alien Enemies Act and 
endured by Germans, Japanese and Italians during WWII. This information 
is relevant to Congress's assessment of the antiterrorism package under 
consideration. As we were after Pearl Harbor, we are now at a 
crossroads. Only this time the terrorism perpetrated on America could 
affect the civil liberties of Muslims and Arabs, instead of German, 
Japanese and Italians. While we must be very mindful of national 
security concerns, we must also be certain not to abridge the 
Constitutional rights of Muslims and Arabs in America unnecessarily, 
particularly those who call our nation their home.
    Thank you for championing our Constitutional freedoms. You are 
right. Our Constitution must always guide our actions, and freedom is a 
most precious commodity. Thank you for defending it for all of us.
            With best regards
                                        Elsbeth M. Seewald,
                                                     Chairman, GAFF

                                

                             German American Education Fund
                                         Glenview, IL 60025
                                                    October 8, 2001

Sen. Russell D. Feingold
Chair, Subcommittee on the Constitution,
Federalism and Property Rights
Committee on the Judiciary
United State Senate
Washington, DC 20510

    Dear Senator Feingold,
    As our government responds to the horrendous September 11 attacks, 
we must not the ignore Constitutional freedoms which form the basis of 
our democracy. Thank you for holding a hearing on this very important 
topic. Adequate protection of our civil liberties and national security 
requires careful balancing. In assessing the various alternatives, 
history can provide much-needed guidance. At the Subcommittee's hearing 
on October 3, the immigrant provisions of the antiterrorism legislation 
were discussed at length. Of particular concern was the risk of 
violating the civil liberties of aliens who the Department of Justice 
deems to be potential security risks. Allowing governmental detention 
of aliens on the basis of suspicion requires great scrutiny because it 
is such an incursion on one's liberty. Noticeably absent from the 
hearing testimony was any meaningful discussion of the government's 
WWII alien enemy program and its impact. The WWII alien enemy program 
is instructive because many parts resemble the enhanced immigrant 
provisions being considered as part of the antiterrorism legislation.
    After Pearl Harbor, President Franklin D. Roosevelt issued 
proclamations granting Attorney General Francis Biddle plenary 
authority almost one million German, Italian and Japanese aliens 
pursuant to the Alien Enemies Act. 50 USC 21-24. See also Presidential 
Proclamations 2525-2527, dated Dec. 7-8, 1941. Administered by the DOJ, 
the alien enemy program affected approximately one million German, 
Italian and Japanese aliens, many permanent residents of the US. 
Stripped of any Constitutional rights, DOJ afforded these aliens little 
due process. All alien enemies were subject to travel and property 
ownership restrictions. Those living or working in hastily established 
prohibited zones were forced to abandon their homes and places of work. 
J. Edgar Hoover's FBI raided thousands of homes seeking evidence 
against suspected fifth columnists. The presence of an alien justified 
a search. During the war years, thousands were arrested and detained 
indefinitely awaiting DOJ's final internment decision.
    DOJ established its own standards justifying indefinite internment, 
then acted as prosecutor and judge. The U.S. attorney and the FBI 
appeared before DOJ-appointed civilian hearing boards to give evidence, 
frequently based on tips and innuendo. The accused alien could present 
only two character witnesses and had no right to counsel, to contest 
the proceedings or to know the reason for detention. Hearing boards 
recommended release, parole or internment. In passing final judgment, 
DOJ often ignored more lenient recommendations, ordering internment if 
it found a suspect ``potentially dangerous to the public peace and 
safety of the United States.'' The standards forming the basis for such 
decisions were vague and unknown to prospective internees. No right of 
administrative appeal or judicial review existed. On rare occasions, 
DOJ granted rehearings.
    More than 25,000 were interned, including 11,000 Germans, 11,000 
Japanese and 3,300 Italians. These internees, including many American-
born children and spouses, languished in Immigration and 
Nationalization Serviceadministered camps throughout the United States. 
A majority of internees were permanent residents of the United States 
and certainly deserved a higher degree of Constitutional protection. 
Thousands were exchanged for Americans in Germany and Japan. Families 
were torn apart and homes lost. Internment should have ended in 1945, 
but President Harry Truman issued an Executive Order requiring hundreds 
of ``potential security risks'' to remain interned years after the war, 
primarily Germans. They had no means of escape except deportation, 
until finally they were released. The last internee was freed in 1948.
    Significantly, all persons of Japanese ancestry who were interned, 
either due to removal from the West Coast or pursuant to the DOJ alien 
internment program, were granted government redress and an apology. As 
required by Congress, the DOJ is now assessing the US government's 
World War II violations of Italian American civil liberties, including 
its own. In August, you, Senators Chuck Grassley and Ted Kennedy 
introduced the Wartime Study of European Americans and Refugees Study 
Act to establish a commission to study the European American WWII 
experience and related civil liberties violations. One overriding 
responsibility of that commission would be to make recommendations as 
to how best to protect civil liberties during times of national crisis. 
We have now learned that such a crisis can arise in a matter of 
seconds. If the commission's work was completed, it could provide more 
of a framework for the legislative response being considered today. We 
hope that your bill will pass promptly through Congress. In the 
meantime, however, legislators would do well to analyze the historical 
impact of programs it has apologized for in the past, as they decide 
how to treat aliens who are suspected security risks today.
    Please do not hesitate to contact Karen Ebel or me for further 
information.
            Best regards,
                                         Elsbeth M. Seewald
                                                           Chairman

                                

                                                    October 5, 2001

The Hon. Russell D. Feingold
Chairman, Subconmuttee Constitution,
Federalism, and Property Right
Washington, DC 20510-4904

    Dear Senator Feingold:

    Enclosed you will find my prepared statement for inclusion in the 
printed public record of the Subcommittee's hearing on the Anti-
terrorism Act of 2001. I think it is imperative chat a statement of an 
eyewitness to the events of arrest, search and seizure, and indefinite 
detention and internment in the United States during World War II be 
included in the public record.
    For the record I am American-born citizen of the United States, I 
am an eyewitness to the events of the arrest, internment and 
deportation of German Americans during World War II, In 1973 I retired 
as a regular officer from the United States Air Force after more than 
21 years of service. I hold both a Bachelors of Science and M.D. A. 
degrees from Arizona State University, Tempe, Arizona. I am the co-
author of the 1500-page research volume, German-Americans in the World 
Wars, The World War Two Experience. The Internment of German-American, 
published by K.G. Saur, Munich, Germany, 1995.
    I thank you and the members of the committee for providing me with 
the opportunity to submit a statement for the public record.
            Sincerely,

           Statement of Arthur D. Jacobs, Major, USAF Retired

    Mr. Chairman and members of the committee, I am an American, an 
American of German descent. I was born in Brooklyn, New York. I am also 
a retired regular officer of the United States Air Force (USAF). Thank 
you for the opportunity to make this statement regarding, ``protecting 
Constitutional Freedoms in the Face of Terrorism,'' or the ``Anti-
terrorism Act of 2001.''
    Just six years before I enlisted in the USAF I was imprisoned at 
the age of twelve with my family at Ellis Island, New York Harbor from 
February 27, 1945 to April 25, 1945. At the end of April we were 
transported under armed guard to the Immigration and Naturalization 
Service camp at Crystal City, Texas. There we were held in captivity 
for seven months, from May 1945 through November 1945, after which we 
were taken back to Ellis Island where we were held for almost two 
months--December 1945 through January 17, 1946. On January 17, 1946 we 
were transported to the Troopship Aiken Victory for deportation to a 
war-torn, starving Germany.
    Upon debarkation on January 26, 1946, from the Aiken Victory at 
Bremerhaven, Germany, American soldiers armed with machine guns, 
carbines, and pistols met us at the bottom of gangplank. These soldiers 
transported us by truck to Bremen, Germany (some 50 miles to the 
south]; there they loaded us into boxcars in which they transported us 
for same three days and nights during frigid temperatures to 
Ludwigsburg, Germany. The interior of the boxcar was pitch black, 
freezing, and was tilled with an indescribable stench. Our latrine 
facility was a foul-smelling open bucket. After we arrived in 
Ludwigsburg, we \1\ were transported to a prison called Hohenasperg [a 
15th century citadel, also known as Camp 76, U.S. Seventh 
Army Internment Camp].\2\
---------------------------------------------------------------------------
    \1\ My father, my brother and I. My mother was taken to another 
internment camp
    \2\ The rest of my story can be read in my Book, The Prison Called 
Hohenasperg: An American boy betrayed by his Government during World 
War II, May 1999, Publish, FL, ISBN:1-5811-832-0.
---------------------------------------------------------------------------
    We committed no crimes, no espionage, no sabotage, and no acts of 
terrorism, yet we went through the ordeal I just described. And if 
anyone was terrorized it was my father. The events I have depicted 
destroyed my family. It was a traumatic experience that my invalid 
mother never overcame.
    Even though the events I have explained took place almost 57 years 
ago, Congress has yet to act to examine and/or correct the injustices 
that befell my family and thousands of other German Americans. During 
the past 15 years I have written hundreds of letters on this matter to 
members of Congress on both sides of the aisle. It. took 15 years to 
have the internment of German Americans recognized in a congressional 
document,\3\ This milestone was reached when Congressman Matt Salmon 
wrote on November 19, 1999;
---------------------------------------------------------------------------
    \3\ This is true cxcept for my statement in Appendix II (page 133) 
of S. Hrg. 102-468, July 25, 1991. Americans was also noted in regard 
to violations of civil liberties. Several German Americans internees 
were not freed until August 1948, more than three years after war in 
Europe had coded.
---------------------------------------------------------------------------
    ``As we reach the end of the century, I urge my colleagues to purse 
a full historical accounting of the experiences of all Americans who 
suffered discrimination during the Second World War as expeditiously as 
possible.'' \4\ Twenty months later Senator Feingold introduced S. 
1356, Wartime Treatment of European Americans and Refugees Study Act 
(Introduced in the Senate August 3, 2001).\5\ This was the second major 
milestone reached in my pursuit of justice.
---------------------------------------------------------------------------
    \4\ Proclamation No. 2526--Hon. Matt Salmon, Congressional Record, 
Extension of Remarks, November 19, 1999, pp. E2525-E2526.
    \5\ Senators Kennedy and Grassley are cosponsors of this bill.
---------------------------------------------------------------------------
    Before S. 1356 was introduced, two laws related to the internment 
program of the United States during World War 11 were enacted, they 
are: P.L. 100-383 [8/10/1988], The Civil Liberties Act of 1988 and P.L. 
106-451 [11/17/2000], Wartime Violation of Italian American Civil 
Liberties Act, to address injustices [civil liberties violations] 
suffered by Japanese Americans and Italian Americans respectively. Both 
of these laws seemingly skirted or set aside the civil liberties 
violations of German Americans; justice would have required that P.L. 
100-383, The Civil Liberties Act of 1988, include all Americans who 
suffered discrimination, i.e., arrest, internment, and/or deportation, 
during the Second World War.
    Since the terrorist attack of September 11, 2001 much has been 
stated and debated throughout this country in regard to protecting the 
civil liberties of Arab Americans and American Muslims. During the 
debates on the matter of indefinite detention and curtailing civil 
liberties, the case of the internment of Japanese Americans during 
World War II is often intenwined.\6\ However, the civil liberties 
violations of German Americans during this same time period are not 
mentioned. To my knowledge Senator Feingold, you are the only member of 
Congress who has, during this crisis, made note of the injustices 
suffered by the German Americans and Italian Americans in the United 
States during World War II, This is an important statement because it 
informs the public that during war, civil liberties tend to take a back 
seat to public security. Your statement is also significant in that it 
reveals the context of interruiient, it is neither race nor ethnicity 
that causes us to curtail the civil liberties of Americans--citizetts 
and permanent resident aliens--but ii tells us that.such actions are 
based upon whether one's race and/or nationality is that of the enemy.
---------------------------------------------------------------------------
    \6\ Senator Leahy and two members, Messrs. Cole and McGinnis, of 
your witness panel in their written statements made note of Japanese 
Americans, without mentioning German Americans. In an evening broadcast 
on the day [1013/20/11] or this hearing, during CNN's Crosstalk the 
internment of Japanese Americans was also noted in regard to violations 
of civil lobdrtics.
---------------------------------------------------------------------------
    I was disappointed that the subcommittee's panel of witnesses for 
this hearing did not include eyewitness testimony in regard to the 
blatant disregard of the civil liberties of German Americans prior to, 
during, and after World War II, For example, eyewitnesses of the period 
could have provided the members of the committee with a sense of what 
it was like to have been arrested by a blanket arrest warrant, to have 
their home ransacked and searched, their personal property confiscated, 
and to have been indefinitely detained.\7\
---------------------------------------------------------------------------
    \7\ Several German Americans internees were not freed until August 
1948, more than three years after war in Europe had ended.
---------------------------------------------------------------------------
    Furthermore, eyewitnesses could have also told the committee that 
while their civil liberties were being violated, no one bothered to 
tell them the nature and cause of the accusation and why they were 
chosen to sit out the war behind barbed wire. Eyewitnesses could have 
told you that they were neither confronted with witnesses nor were they 
afforded counsel for their defense. Eyewitness could have also 
described the ineffectiveness of judicial review during war for those 
whose ethnicity was that of the enemy, finally, eyewitnesses could have 
informed the subcommittee how they were unfairly targeted.
    During times of war all Americans--citizens and permanent resident 
aliens--must pay a price. Inductees in the U.S. Armed Forces gave up 
many freedoms. Many pay the ultimate price--their life. Others pay a 
much smaller price such as unlawful search and seizure, arrest, 
internment and deportation and other such inconveniences. Senator 
Feingold and members of the committee sometimes a nation must do what 
it must, to protect the peace and public safety.
    During World War II, the warrant for my father's arrest, dated 
February 23, 1944, was a ``fill in the blank warrant'' which reads in 
part, ``whom I (Attorney General] deem dangerous to the public peace 
and safety of the United States. The said alien [Lambert D. Jacobs] is 
to be detained and confined until further order.'' Even through my 
father committed no crimes, was not a spy, saboteur, or terrorist, he 
was apprehended with a blanket arrest order that had the original date 
of December 8, 1941, Even though my father committed no crimes, was not 
a spy, saboteur, or terrorist, he was apprehended with a blanket arrest 
order that had the original date of December 8, 1941, stricken and 
replaced with February 23, 1944. Ultimately, my father was interned 
with his family for the duration of the war and longer.
    During World War 11 injustice did not distinguish between race and 
ethnicity. All permanent resident aliens of enemy nationality and some 
American citizens of the race and/or nationality of the enemy were 
subject to injustices. Injustice is no respecter of persons, race, or 
ethnicity during times of war and terrorism when the peace and public 
safety are at risk.
                                            Arthur D Jacobs
                                                Major, USAF Retired

                                

  Statement of Hon. Jon Kyl, a U.S. Senator from the State of Arizona

                              Introduction
    Sadly, the events of September 11 demonstrated, as no other recent 
occurrence has been able to do, that we must put aside the typical, 
painfully-slow process that often seems to rule here in times of peace. 
We cannot continue to yield the advantage of time to those who will 
continue to murder Americans and our allies until we stop them. We are 
in a race to ensure the safety and security of our citizens, and there 
is literally no time to lose.
       We are Not Rushing Forward with Ill-Conceived Legislation
    Fortunately, we are not rushing forward with ill-conceived 
legislation. We are finally putting in place important tools that will 
enable our nation's law-enforcement personnel to more effectively 
investigate and prevent further attacks on the people of the United 
States. Since September of 1998, the Senate Judiciary Committee or its 
Subcommittee on Technology, Terrorism and Government Information has 
held thirteen hearings on terrorism. The witnesses who appeared before 
the Committee in those hearings included Louis Freeh, former Director 
of the FBI, and representatives of all three of the congressionally 
mandated commissions on terrorism that have issued reports over the 
last two years.
    Most of the provisions contained in the Attorney General's proposed 
legislation have already been examined by the committee of 
jurisdiction. These provisions mirror the recommendations of one or 
more of the major terrorism commissions. In fact, some of these 
provisions have already been voted on and passed by the Senate.
    The language sent forward by the Attorney General to establish 
nationwide trap and trace authority is included in the Hatch- 
Feinstein-Kyl Amendment to the recently passed Commerce, Justice, State 
Appropriations Bill. Much of the remaining language in that amendment 
was included in a bill we passed in the Senate last fall, entitled the 
``Counter terrorism Act of 2000.'' We passed that bill, S. 3205, after 
significant debate and numerous hearings.
                            Need Action Now
    Nearly a year after we passed it the first time, and three full 
weeks after the unspeakable acts of terror that occurred on September 
11, we still have members of this body dragging their feet and saying 
we are moving too quickly to pass counter-terrorism legislation. A 
recent New York Times article quoted one of my colleagues saying he, 
``would not be rushed, noting that Congress took almost two months to 
pass antiterrorism legislation in response to the Oklahoma City bombing 
in 1995.''
    I appreciate the fact that some of my colleagues do not like to be 
rushed, but we are talking about legislation that has been requested by 
both Democratic and Republican administrations since 1995. Some of it, 
the Senate has already voted to enact. Taking two months to pass 
antiterrorism legislation in response to the Oklahoma City bombing is 
not something of which we should be proud. And if we take another two 
months to act after an even more heinous act of terrorism, we will be 
giving terrorists who are already around the first turn, a full lap 
advantage in this race. That is not what the American people are 
expecting from their leaders at this time.
                            Civil Liberties
    Let me address briefly the concerns voiced by some of my 
colleagues. Namely, that we are in danger of ``trampling civil 
liberties'' in our rush to pass counter-terrorism legislation. I 
reiterate that we are not rushing. The legislation we have already 
passed, and the legislation now offered by the administration, was 
under consideration long before the events of September 11. We have 
already held hearings on these issues. Most importantly, there is 
nothing being requested that broadly impinges on the rights and 
liberties of U.S. citizens or raises any constitutional questions.
    The bill would give federal agencies fighting terrorism the same 
tools we have given those fighting illicit drugs, or even postal fraud. 
The tools in the Administration are needed updates to the criminal law 
to keep pace with changes in technology. These are changes at the 
margins, not fundamental changes in privacy.
    While some of these tools are extremely helpful in terrorism 
investigations, it makes no sense to refuse to apply these common sense 
changes to other crimes in cases like kidnapping, drug dealing, and 
child pornography. It is unwise to limit these tools to only terrorism 
offenses because often, at the outset of an investigation of a 
particular person or crime, you do not know what you are dealing with. 
People do not walk around with t-shirts that say ``I am a terrorist.'' 
A credit card fraud case or a false immigration documents case, may 
turn out to connected to funding or facilitating the operations of a 
terrorist group. Therefore, we should give law enforcement all of these 
tools to have the best chance of discovering and disrupting these 
activities.
                               Conclusion
    I support the request of the Attorney General, and I urge my 
colleagues to give this body due credit for the work that has already 
been done over the last six years, in several committees, to bring 
credible counter-terrorism legislation to the floor. We have a 
responsibility to the people of this nation to act, and to act with all 
prudent haste, to ensure that those who are charged with protecting us 
from future terrorist attacks are empowered to do so.
    We cannot afford to lose this race against terror, and we cannot 
afford to give the enemy in this war a full lap head-start.

                                

                                            Edwin Meese III
                                     Washington, D.C. 20002
                                                    October 2, 2001

Senator Patrick Leahy
Chairman
Senator Orrin Hatch
Ranking Member
U.S. Senate Judiciary Committee
Washington, D.C. 20510

    Dear Chairman Leaky and Senator Hatch:

    In the aftermath of the events of September 11, it is clear that 
the United States is extremely vulnerable to terrorism. The Bush 
Administration has a great responsibility in bringing those involved to 
justice and in helping protect the Nation from further terrorist 
attacks.
    The Justice Department has drafted a series of measured, reasonable 
proposals to assist law enforcement at this critical time. We believe 
they deserve timely, favorable consideration in Congress.
    The package contains tools that will help authorities more 
efficiently and effectively track the communications of terrorists. It 
would provide our law enforcement and intelligence communities the 
authority they need to better share crucial information in a timely 
manner. Also, it would increase criminal penalties against terrorists 
and those who harbor them.
    Some of the provisions would update our laws to keep pace with 
technology, and have been sought in the past to respond to computer 
hacking and similar crimes. Others would add terrorism to authority 
that law enforcement already uses to fight crimes that lawmakers 
decided many years ago must be a national priority, such as illegal 
drug use. We believe (hat the proposals are consistent with the 
Constitution and would not unduly interfere with the liberties that we 
as Americans cherish,
    We appreciate your consideration of this important matter.
            Sincerely,
                                            Edwin Meese III

                                

                    National District Attorneys Association
                                 Alexandria, Virginia 22314
                                                    October 2, 2001

The Hon. Patrick J. Leahy
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510-6275

The Hon. Orrin G. Hatch
Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, DC 20510-6275

    Dear Chairman Leahy and Senator Hatch:
    As the President of the National District Attorneys Association I 
want to most strongly urge the Senate to pass those protions of the 
``Anti-Terrorism Act of 2001'' that enhance the ability of law 
enforcement to conduct electronic surveillance on those who would bring 
terror to our shores.
    Since at least1992 this Association, through actions of its Board 
of Directors, has continually urged that law enforcement be capable, 
with proper authority, to safeguard our citizens through the use of 
electronic surveillance techniques.
    In 1994, the late William O'Malley, the District Attorney of 
Plymouth County, Massachusetts, and the President of this Association 
testifying before your committee stated that;

        ``If the law enforcement community does not have the 
        opportunity to keep pace with advanced telecommunication 
        technologies then the criminals who do have access to this 
        technology will impunity.''

    Then as recently as last May, the Honorable Joseph I. Cassilly, 
State's Attorney for Harford County, Maryland, and Chair of our Cyber 
Crime subcommittee, in testifying before the House Judiciary Committee 
on cyber crime, said:

        ``With these problems have come the development of new 
        investigative challenges, . . . defining jurisdiction of a 
        crime that spans dozens of states or countries, getting 
        cooperation from service providers, record storage sites and 
        investigators in other states or countries, new laws regarding 
        obtaining evidence or working with laws in foreign 
        jurisdictions.''

    To counter the threat of criminals that communicate on a worldwide 
basis in real world time we need at least some semblance of parity. 
International terrorists and drug dealers alike have access to the 
latest in technology and has recently been proven, are not loathe to 
exploit their superiority.
    Law enforcement needs multi-jurisdictional warrants; the ability to 
freely exchange information between law enforcement organizations and 
with intelligence clements; the enhancement of ``trap and trace'' 
authority; expedited access to information in emergency circumstances 
and expanded subpoena authority for communications records to identify 
subscribers.
    For almost a decade we have been pleading for the tools and the 
laws we need to protect the people in our communities. We will never 
know if we could have prevented the tragic consequences of September 
11th had we had the investigative tools we have been asking 
for since 1992. We only know that we will need every advantage to 
prevent such a tragedy from every occurring again.
            Sincerely,
                                            Kevin P. Meenan
    District Attorney, 7th Judicial District, Cassper WY
                 President, National District Attorneys Association

                                

      Statement of Southeastern Legal Foundation, Atlanta, Georgia

    The Foundation wholeheartedly supports President Bush's declaration 
of war against terrorism, and supports giving law enforcement and 
national security officials the tools they need to wage this war. 
However, the Foundation, along with many other public interest groups 
and legislators on both sides of the aisle, was gravely concerned that 
the legislation requested by Attorney General John Ashcroft went too 
far in eclipsing vital constitutional protections of law abiding 
citizens.
    The Southeastern Legal Foundation applauds the work of the House 
Judiciary Committee on the ``Patriot Act,'' the package of reforms 
requested by the Bush Administration to deal with the terrorist war 
against American civilization.
    It is important for us to remember that new laws will be worthless 
if they are not enforced. We already have laws that should have 
prevented these attacks. It is a major scandal that fully 15 of the 19 
hijackers were in the U.S. on expired visas. If we had simply enforced 
the visas and deported these people as the law already requires then in 
all likelihood the attacks would have been thwarted. This would be 
preferable to surrendering individual freedoms to the fight against 
terrorism.
    Foreign nationals here on student visas routinely overstay. Former 
Deputy Assistant FBI director for national security Dale Watson 
testified before Congress that ``we know for a fact that organizations 
funded by a state sponsor of terrorism fund students coming to the 
United States . . . and that is part of their intelligence 
organization.'' Remember, in this vein, that a terrorist who bombed the 
World Trade Center in 1993 entered the U.S. on a student visa. In 1996, 
Congress passed a law requiring universities to report the whereabouts 
and status of all foreign students in the U.S. to a $40 million 
electronic tracking system. The law has even been funded by Congress, 
yet the system has never been used. But now there are proposals for 
legislation to make educational institutions open their records to 
federal law enforcement. This would not be necessary if over the last 
five years this tracking system had been implemented.
    It is appalling that on April 1,1994, the Clinton administration 
ordered the INS to stop conducting routine fingerprint background 
checks on aliens receiving visas. In the year prior to this action, 
9,500 visa applications were denied as a result of this check. In the 
intervening seven years at that rate some 70,000 visas have been 
granted to individuals who would have flunked the fingerprint 
background check. Is it any wonder that the enemy wandered freely in 
our midst?
    We do not need to surrender our civil liberties to solve these 
problems we need the will to properly enforce our immigration laws. We 
can no longer allow immigration policy to serve the interests of those 
seeking cheap labor, cheap votes, or a relief valve for discredited 
economic policies in other countries. Immigration policy is now an 
urgent matter of national security.
    The Foundation was likewise concerned that permitting the executive 
branch to indefinitely detain aliens without judicial review, and is 
relieved that this provision has been removed from both the House and 
Senate versions of the bill.
    The Foundation supports the Administration's proposal for sharing 
grand jury information with national security and intelligence 
officials. When terrorist acts are investigated and prosecuted as 
crimes, as was the case with the 1993 World Trade Center bombing, and 
the Khobar Towers bombing, a great deal of vital information is 
gathered by the grand jury which is directly relevant to our national 
security. After all, these are not random unconnected criminal acts, 
but are instead part of the enemy's integrated war plan against the 
United States. It is the very height of folly to deny our intelligence 
and national security forces information regarding enemy acts of war 
simply because it was a grand jury that uncovered it.
    While allowing law enforcement to share information with national 
security officials should be allowed, constitutional restraints on law 
enforcement use of intelligence information in criminal prosecutions 
should be maintained. Thus, evidence illegally obtained by foreign 
governments should not be allowed in criminal prosecutions, and the 
House and Senate wisely removed these provisions.
    The proposals for nationwide warrants and multi-point wiretap 
authority should be approved despite the Fourth Amendment risks as long 
as there is a sunset provision and the initial issuance is supported by 
judicial approval of the warrant. These are necessary and reasonable 
adaptations to the ways in which terrorists have taken advantage of 
technology and freedom of movement in our country. However, this 
legislation should also permit such a warrant to be challenged in any 
jurisdiction in which it is served in order to check forum shopping by 
the government.
    The interception of electronic communications--e-mail and web 
surfing should be limited in the same way that PEN register and trap 
and trace devices are currently limited--to and from information can be 
collected, but not the content of e-mailed communications.
    Proposed changes in the definition of what constitutes a 
``terrorism offense'' are sufficiently overbroad that they could be 
applied to teenagers putting firecrackers into mailboxes. When an act 
meets this overbroad definition, then the entire panoply of 
surveillance and enforcement powers comes into play. The potential for 
abuse by overzealous government officials is extremely high. There is a 
difference between the youthful indiscretions of a teenager and a 
terrorist act, and the legislation should have the wits to reflect that 
by narrowing the definition of a terrorist act. Terrorist intent should 
be included in the definition of the offense.
    Many years after the enemy first declared it, the U.S. has finally 
come to grips with the ugly reality of a new war against a furtive and 
ruthless enemy. New measures are clearly required, but we should not go 
too far. In properly limiting the dramatic expansion of power sought by 
the government, Congress is once again demonstrating the genius of the 
separation of powers. The Southeastern Legal Foundation adds its voice 
to the many liberal and conservative public interest groups supporting 
these limitations.
    But these new measures will not alone suffice. The new resolve of 
the American people should also be directed to the scandalously lax 
enforcement of our immigration law. Our national defense requires it. 
Laws in several states and under consideration in others, including 
Georgia, permit issuance of drivers licenses to illegal aliens. Several 
of the hijackers had obtained drivers licenses from the state of 
Virginia, which facilitated their ability to move around the country 
and plan and execute their attacks. Even before September 11, 2001, the 
Southeastern Legal Foundation argued that issuing drivers licenses to 
illegal aliens directly undermines enforcement of immigration laws. In 
the current environment the practice also undermines our national 
security. Congress should adopt legislation forbidding states from 
issuing drivers licenses to illegal aliens.
            Respectfully Submitted,
                                                  Phil Kent
                                                          President

                                

                                            Dick Thornburgh
                                       Washington, DC 20005
                                                    October 2, 2001

Hon. Patrick Leahy
Chairman
Hon. Orrin Hatch
Ranking Member
U.S. Senate Judiraary Committee
Washington. D.C. 20510

    Dear Chairman Leahy and Senator Hatch:

    In the aftermath of the events of September 11, it is clear that 
the United States is extremely vulnerable to terrorism. The Bush 
Administration has a great responsibility in bringing those involved to 
justice and in helping protect the nation from further terrorist 
attacks.
    The Justice Department has drafted a series of measured, reasonable 
proposals to assist law enforcement at this critical time. We believe 
they deserve timely, favorable consideration in Congress.
    The package contains tools that will help authorities more 
efficiently and effectively truck the communications of terrorists. It 
would provide our lava enforcement and intelligence communities the 
authority they need to better share crucial information in a timely 
manner. Also, it would increase criminal penalties against terrorists 
and those who harbor theirs.
    Some of the provisions would update our laws to keep pace with 
technology and have been sought in the past to respond to computer 
hacking and similar crimes. Others would add terrorism to authority 
that law enforcement already uses to fight crimes chat lawmakers 
decided many years ago must be a national priority, such as illegal 
drug use. We believe that the proposals arc consistent with the 
Constitution anal would not unduly interfere in the liberties we as 
Americans cherish.
    We appreciate your consideration of this important matter.
            Sincerely,
                                            Dick Thornburgh

                                

  Statement of Hon. Strom Thurmond, a U.S. Senator from the State of 
                             South Carolina

    Mr. Chairman:
    I appreciate the concerns that you and others have expressed about 
the need to maintain the constitutional freedoms that have made our 
country the greatest in the world. Our Constitution and the freedoms it 
protects have always been, and must always be, the bedrock of our 
Nation.
    As I stated at our full Judiciary Committee hearing on terrorism 
last week, America is threatened today by an enemy unlike any we have 
faced before. Especially since the end of the Cold War, we have felt 
secure in knowing that our Armed Forces are the strongest in the world, 
and have the power to defeat any enemy who dares to invade American 
soil. However, the new enemies that we face know that they cannot 
overtake our government by force and rule our country. Instead, through 
death and destruction, they seek to intimidate us into submission.
    Based on the events of September 11th, they are at war with us, and 
we are at war with them. But they are not hampered by the rules of war. 
They do not have the courage to attack our military bases. Instead, 
they enter our country and take advantage of the freedoms and 
conveniences that Americans take for granted, and then use them against 
us to kill innocent Americans.
    America must do what is necessary to fight our enemies and defeat 
them. It is true that, in times of war, the freedoms and civil 
liberties that Americans enjoy have been restricted to some degree in 
certain circumstances, as discussed in detail in a recent book by Chief 
Justice William Rehnquist, All the Laws But One, but the actions of the 
government today do not approach these measures.
    Contrary to what some suggest, our government is not seeking to 
limit our constitutional liberties and freedoms in response to this 
crisis. We must keep in mind that some of the groups opposing these 
measures believe that law enforcement should not have critical tools it 
already has to fight crime today, such as any form of electronic 
surveillance.
    The Bush Administration has a us to take some reasonable, measured 
steps to make terrorism a top priority in our criminal laws and to 
update our laws for modern technology. None of these proposals are 
unconstitutional, and none of them should cause innocent Americans any 
concern.
    These proposals respond to the ongoing national security threat 
that our country faces today. We must better enable law enforcement to 
track the communications of terrorists. Our enemies use sophisticated 
technology, such as advanced computers and multiple cellular 
telephones, to take advantage of the deficiencies in current law. Under 
this bill, these laws would even reflect the reality of the 
21st Century.
    Some of these provisions have been sought in the past help law 
enforcement respond to hacking and other computer crimes. However, 
Congress failed to respond to the need. For example, Internet 
communications travel through many jurisdictions that have nothing to 
do with the place where crimes are being committed, and this proposal 
would eliminate such redundant jurisdictional barriers that impede 
ongoing, time-sensitive investigations.
    A major goal of this package is simply to make our criminal laws 
reflect that terrorism is a top priority. They are not designed to give 
the government broad, new, untested powers. Instead, they add terrorism 
to the authority that law enforcement already uses to fight crimes that 
we decided years ago must be a national priority, such as the scourge 
of illegal drug abuse.
    Administrative subpoena authority for terrorism is a good 
illustration. Law enforcement already has administrative subpoena power 
for drug offenses, child sexual exploitation, and even health care 
fraud, and these powers have been exercised in a reasonable manner.
    Last year, the Congress added to this list administrative subpoena 
authority to help the Secret Service track those who threatened the 
President. Also, based on a bill that I introduced with Senator Biden 
in the last Congress, the Senate voted unanimously to expand the 
authority further to cover certain dangerous violent fugitives from 
justice. While all of these crimes are serious, they are certainly no 
more important than the fight against terrorism, and there is no reason 
terrorism should not be included in the list.
    Acts of terrorism like we endured on September 11th are 
both domestic crimes and threats to our national security. We cannot 
allow artificial barriers between intelligence and law enforcement to 
imperil out ability to fight terrorism on American soil. Law 
enforcement and intelligence agencies must be given the ability to 
cooperate and share information more closely than they can now, and 
this legislation would accomplish that.
    Further, we need to amend barriers to prosecution, such as short 
statutes of limitations for bringing charges. Also, we need to increase 
the penalties against terrorists and those who harbor them.
    It is true that some of these provisions are not directly targeted 
to help authorities apprehend those involved in the September 
11th attacks. However, terrorism takes a great variety of 
forms, and some of these proposals are needed to protect our country 
from other terrorist attacks that we could face at any moment.
    Our country faces new dangers and uncertainties that were hard for 
many Americans to envision just a month ago. But as in decades past, 
Americans understand the threats we face and are willing to accept 
greater inconveniences and restrictions for greater security. As 
reflected in a Washington Post poll published on Saturday, the American 
people support giving law enforcement these critical tools.
    A few weeks ago, the Senate passed some of the important and more 
controversial provisions in this package as an amendment to the 
Commerce-Justice-State Appropriations bill. I cosponsored this 
important measure. Similarly, the full Senate deserves the opportunity 
to consider the entire Justice Department proposal in the very near 
future. If it does, I believe the entire proposal will receive a level 
of strong support similar to the terrorism appropriations amendment.
    As Attorney General Ashcroft has repeatedly said, we face a clear 
and present danger from future terrorist attacks. Law enforcement faces 
a tough challenge in responding to this sad new reality. These 
proposals will eliminate existing barriers to their ability to defend 
and protect us. They should be enacted into law.
    Our constitutional freedoms are not in danger by the Attorney 
General's proposals. However, because of terrorism, what is in danger 
today is our national security. The legislation we are considering will 
help make America safer and more secure.
    These reforms are long overdue. American lives are still risk. We 
cannot afford to endlessly deliberate and delay. We must take action 
now.

                                

                                 U.S. Department of Justice
                              Office of Legislative Affairs
                                             Washington, D.C. 20530

The Honorable Bob Graham
Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

    Dear Senator Graham:

    I am writing to relay to you the views of the Department of Justice 
on the constitutionality of amending the Foreign Intelligence 
Surveillance Act, 50 U.S.C. Sec. Sec. 1800-1863 (``FISA''), so that a 
search may be approved when the collection of foreign intelligence is 
``a significant purpose'' of the search. In its current form, FISA 
requires that ``the purpose'' of the search be for the collection of 
foreign intelligence. 50 U.S.C. Sec. 1804(a)(7)(B) and 50 U.S.C. 
Sec. 1823(a)(7)(B). We believe that this amendment would not violate 
the Fourth Amendment. Amending FISA merely gives the Department the 
flexibility to conduct foreign intelligence surveillance that is 
permitted by the Constitution itself.
    The Fourth Amendment declares that, ``the right of the people to be 
secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated.'' U.S. 
Const. Amend. IV (emphasis added). The Amendment also declares that 
``no Warrants shall issue, but upon probable cause, supported by Oath 
or affirmation, and particularly describing the place to be searched 
and the persons or things to be seized.'' Id.
    Thus, the touchstone for review is whether a search is 
``reasonable.'' See, e.g., Veronia School Dist. 47J v. Acton, 515 U.S. 
646, 652 (1995) (``[a]s the text of the Fourth Amendment indicates, the 
ultimate measure of the constitutionality of a government search is 
`reasonableness.' ''). When law enforcement undertakes a search to 
discover evidence of criminal wrongdoing, the Supreme Court has said 
that reasonableness generally requires a judicial warrant. See id. at 
653. But the Court has made clear that a warrant is not required for 
all government searches. A warrantless search can be constitutional 
``when special needs, beyond the normal need for law enforcement, make 
the warrant and probable-cause requirement impracticable.'' Id.
    As a result, the Court properly has found a variety of warrantless 
government searches to be consistent with the Fourth Amendment. See 
e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (certain 
automobile searches); Acton, supra (drug testing of high school 
athletes); Michigan v. Dept. of State Police v. Sitz, 496 U.S. 449 
(1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives' 
Assn., 489 U.S. 602 (1989) (drug testing of railroad personnel); 
Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (random drug 
testing of federal customs officers); United States v. Place, 462 U.S. 
696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452 
U.S. 692 (1981) (detention to prevent flight and to protect law 
enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop 
and limited search for weapons).
    In these circumstances, the Court has examined several factors to 
determine whether a warrantless search is reasonable. As the Court 
stated just last Term: ``When faced with special law enforcement needs, 
diminished expectations of privacy, minimal intrusions, or the like, 
the Court has found that certain general, or individual, circumstances 
may render a warrantless search or seizure reasonable.'' Illinois v. 
McArthur, 121 S. Ct. 946, 949 (2001). In creating these exceptions to 
its warrant requirement, the Court has found that, under the totality 
of the circumstances, the ``importance of the government's interests'' 
has outweighed the ``nature and the quality of the intrusion on the 
individual's Fourth Amendment interests.'' See Tennessee v. Garner, 471 
U.S. 1, 8 (1985).
    Of particular relevance here, the Court has found warrantless 
searches reasonable when there are ``exigent circumstances,'' such as a 
potential threat to the safety of law enforcement officers or third 
parties. The Court has also recognized that a government official may 
not need to show the same kind of proof to a magistrate to obtain a 
warrant for a search unrelated to the investigation of a crime ``as one 
must who would search for the fruits or instrumentalities of crime.'' 
Camara v. Municipal Court of San Francisco, 387 U.S. 523, 538 (1967). 
For example, ``[w]here considerations of health and safety are 
involved, the facts that would justify an inference of `probable cause' 
to make an inspection are clearly different from those that would 
justify such an inference where a criminal investigation has been 
undertaken.'' Id. See also Indianapolis v. Edmond, 531 U.S. 32, 44 
(2000) (in context of seizure and exigent circumstances, Fourth 
Amendment would permit appropriately tailored roadblock to thwart an 
imminent terrorist attack or catch a dangerous criminal who is likely 
to flee).
                                   II
    This analysis of Fourth Amendment doctrine demonstrates that the 
government may conduct searches to obtain foreign intelligence that do 
not meet the same standards that apply in the normal law enforcement 
context. It is important to understand the current shape of Fourth 
Amendment law, and how it would apply to the circumstances at hand, in 
order to evaluate the constitutionality of the proposed amendment to 
FISA.
    As we have noted earlier, the Fourth Amendment's reasonableness 
test for searches generally calls fox a balancing of the government's 
interest against the individual's Fourth Amendment interests. Here, the 
nature of the government interest is great. In the counterintelligence 
field, the government is engaging in electronic surveillance in order 
to prevent foreign powers or their agents from obtaining information or 
conducting operations that would directly harm the security of the 
United States.
    To be sure, the Supreme Court has subjected counterintelligence 
searches of purely domestic terrorist groups to a warrant requirement. 
When it first applied the Fourth Amendment to electronic surveillance, 
the Supreme Court specifically refused to extend its analysis to 
include domestic searches that were conducted for national security 
purposes. Katz v. United States, 389 U.S. 347, 358 n. 23 (1967); see 
also Mitchell v. Forsyth, 472 U.S. 511, 531 (1985). Later, however, in 
United States v. United States District Court, for the Eastern District 
of Michigan, 407 U.S. 297, 299 (1972) (``Keith''), the Court held that 
the warrant requirement should apply to cases of terrorism by purely 
domestic groups. In doing so, the Justices framed the question by 
explaining that, ``[i]ts resolution is a matter of national concern, 
requiring sensitivity both to the Government's right to protect itself 
from unlawful subversion and attack and to the citizen's right to be 
secure in his privacy against unreasonable Government intrusion.'' Id. 
While acknowledging that ``unless Government safeguards its own 
capacity to function and to preserve the security of its people, 
society itself could become so disordered that all rights and liberties 
would be endangered,'' id. at 312, the Court cautioned that ``[t)he 
danger to political dissent is acute where the Government attempts to 
act under so vague a concept as the power to protect `domestic 
security.' Given the difficulty of defining the domestic security 
interest, the danger of abuse in acting to protect that interest 
becomes apparent.'' Id. at 314. As a result, the Court held that the 
absence of neutral and disinterested magistrates governing the 
reasonableness of the search impermissibly left ``those charged with 
[the] investigation and prosecutorial duty [as] the sole judges of when 
to utilize constitutionally sensitive means in pursuing their tasks.'' 
Id. at 317.
    The Court explicitly noted, however, that it was not considering 
the scope of the President's surveillance power with respect to the 
activities of foreign powers within or without the country. Id. at 308. 
After Keith, lower courts have recognized that when the government 
conducts a search for national security reasons of a foreign power or 
its agents, it need not meet the same requirements that would normally 
apply in the context of a search of United States citizens who are not 
foreign agents or for criminal law enforcement purposes. In United 
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), 
for example, the Fourth Circuit observed that ``the needs of the 
executive are so compelling in the area of foreign intelligence, unlike 
the area of domestic security, that a uniform warrant requirement 
would, following Keith, `unduly frustrate,' the President in carrying 
out his foreign affairs responsibilities.'' Id. at 913. The Court based 
this determination on a number of factors, including:

        (1) ``[a] warrant requirement would reduce the flexibility of 
        executive foreign intelligence initiatives, in some cases delay 
        executive response to foreign intelligence threats, and 
        increase the chance of leaks regarding sensitive executive 
        operations,'' id.;
        (2) ``the executive possesses unparalleled expertise to make 
        the decision whether to conduct foreign intelligence 
        surveillance, whereas the judiciary is largely inexperienced in 
        making the delicate and complex decisions that lie behind 
        foreign intelligence surveillance . . . . Few, if any, district 
        courts would be truly competent to judge the importance of 
        particular information to the security of the United States or 
        the `probable cause' to demonstrate that the government in fact 
        needs to recover that information from one particular source,'' 
        id. at 91314: and
        (3) the executive branch ``is also constitutionally designated 
        as the pre-eminent authority in foreign affairs.'' Id. at 914.
    The Court also recognized, however, that ``because individual 
privacy interests are severely compromised any time the government 
conducts surveillance without prior judicial approval, this foreign 
intelligence exception to the Fourth Amendment warrant requirement must 
be carefully limited to those situations in which the interests of the 
executive are paramount.'' Id. at 915. See also United States v. Frown, 
484 F.2d 418 (5th Cir. 1973) , cert. denied, 915 U. S. 960 
(1974): United States v. Buck, 548 F. 2d 871 (9th Cir. ), 
cert. denied, 434 U.S. 890 (1977); United States v. Clay, 430 F.2d 165 
(5t'' Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971).
    Therefore, the Fourth Circuit held that the government was relieved 
of the warrant requirement when (1) the object of the search or 
surveillance is a foreign power, its agent or collaborators since such 
cases are ``most likely to call into play difficult and subtle 
judgments about foreign and military affairs,'' 629 F.Zd at 915 and (2) 
``when the surveillance is conducted `primarily' for foreign 
intelligence reasons . . . . because once surveillance becomes 
primarily a criminal investigation, the courts are entirely competent 
to make the usual probable cause determination, and because, 
importantly, individual privacy interests come to the fore and 
government foreign policy concerns recede when the government is 
primarily attempting to form the basis for a criminal prosecution.''. 
Id.
    As the attacks on September 11, 2001 revealed, the government 
interest in conducting searches related to fighting terrorism is 
perhaps of the highest order--the need to defend the nation from direct 
attack. As the Supreme Court has said, ` ``It is ``obvious and 
unarguable' that no governmental interest is more compelling than the 
security of the nation.'' Haig v. Agee, 453 U.S. 280, 307 (1981) . The 
compelling nature of the government's interest here may be understood 
in light of the Founders' express intention to create a federal 
government ``cloathed with all the powers requisite to the complete 
execution of its trust.'' the Federalist No. 23, at 147 (Alexander 
Hamilton) (Jacob E. Cooke ed. 1961). Foremost among the objectives 
committed to that trust by the Constitution is the security of the 
nation. As Hamilton explained in arguing for the Constitution's 
adoption, because ``the circumstances which may affect the public 
safety'' are not ``reducible within certain determinate limits,''

        it must be admitted, as a necessary consequence, that there can 
        be no limitation of that authority, which is to provide for the 
        defence and protection of the community, in any matter 
        essential to its efficacy.

    Id. at 147-48.\1\ Within the limits that the Constitution itself 
imposes, the scope and distribution of the powers to protect national 
security must be construed to authorize the most efficacious defense of 
the nation and its interests in accordance ``with the realistic 
purposes of the entire instrument.'' Lichter v. United States, 334 U.S. 
742, 782 (1948). Nor is the authority to protect national security 
limited to that necessary ``to victories in the field.'' Application of 
Yamashita, 327 U.S. 1, 12 (1946). The authority over national security 
``carries with it the inherent power to guard against the immediate 
renewal of the conflict.'' Id.
---------------------------------------------------------------------------
    \1\ See also The Federalist No. 34, at 211 (Alexander Hamilton) 
(Jacob E. Cooke ed., 1961) (Federal government is to possess ``an 
indefinite power of providing for emergencies as they might arise''); 
The Federalist No. 41, at 269 (James Madison) (``Security against 
foreign danger is one of the primitive objects of civil society. . .The 
powers requisite for attaining it, must be effectually confided to the 
federal councils.'') Many Supreme Court opinions echo Hamilton's 
argument that the Constitution presupposes the indefinite and 
unpredictable nature of ``the circumstances which may affect the public 
safety,'' and that the federal government's powers are correspondingly 
broad. See, e. g., Dames & Moore v. Regan, 453 U.S. 654, 662 (1981) 
(noting that the President ``exercis[es] the executive authority in a 
world that presents each day some new challenge with which he must 
deal''); Hamilton v. Regents, 293 U.S. 245, 264 (1934) (Federal 
government's war powers are ``well-nigh limitless'' in extent); Stewart 
v. Kahn, 78 U.S. (11Wa11.) 493, 506 (1870) (``The measures to be taken 
in carrying on war . . . are not defined [in the Constitution]. The 
decision of all such questions rests wholly in the discretion of those 
to whom the substantial powers involved are confided by the 
Constitution.''); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 
(1870) (``The Constitution confers upon Congress expressly power to 
declare war, grant letters of marque and reprisal, and make rules 
respecting captures on land and water. Upon the exercise of these 
powers no restrictions are imposed. Of course the power to declare war 
involves the power to prosecute it by all means and in any manner in 
which war may be legitimately prosecuted.'').
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    The text, structure and history of the Constitution establish that 
the Founders entrusted the President with the primary responsibility, 
and therefore the power, to ensure the security of the United States in 
situations of grave and unforeseen emergencies. Intelligence gathering 
is a necessary function that enables the President to carry out that 
authority. The Constitution, for example, vests in the President the 
power to deploy military force in the defense of United States by the 
Vesting Clause, U.S. Const. Art. II, Sec. 1, cl. 1, and by the 
Commander in Chief Clause, id., Sec. 2, cl. 1.\2\ Intelligence 
operations, such as electronic surveillance, often are necessary and 
proper for the effective deployment and execution of military force 
against terrorists. Further, the Constitution makes explicit the 
President's obligation to safeguard the nation's security by whatever 
lawful means are available by imposing on him the duty to ``take Care 
that the Laws be faithfully executed.'' Id., Sec. 3. The implications 
of constitutional text and structure are confirmed by the practical 
consideration that national security decisions often require the unity 
in purpose and energy in action that characterize the Presidency rather 
than Congress.\3\
---------------------------------------------------------------------------
    \2\ See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President 
has authority to deploy United States armed forces ``abroad or to any 
particular region''); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) 
(``As commander-in-chief, [the President] is authorized to direct the 
movements of the naval and military forces placed by law at his 
command, and to employ them in the manner he may deem most 
effectual''); Loving v. United States, 517 U.S. 748, 776 (1996) 
(Scalia, J., concurring in part and concurring in judgment) (The 
``inherent power'' of the Commander in Chief ``are clearly 
extensive.''); Maul v. United States, 274 U.S. 501, 515-16 (1927) 
(Brandeis Holmes, JJ., concurring) (President ``may direct any revenue 
cutter to cruise in any waters in order to perform any duty of the 
service''); Commonwealth of Massachusetts v. Laird, 451 F.2d 26, 32 
(1st Cir. 1971) (the President has ``power as Commander-in-Chief to 
station forces abroad''); Ex parte Vallandigham, 28 F.Cas. 874, 922 
(C.C.S.D. Ohio 1863) (No. 16,816) (in acting ``under this power where 
there is no express legislative declaration, the president is guided 
solely by his own judgment and discretion''); Authority to Use United 
States Military Forces in Somalia, 16 Op. O.Z.C. 6, 6 (1992) (Barr, 
A.G.).
    \3\ As Alexander Hamilton explained in The Federalist No. 74, 
``[o]f all the cares or concerns of government, the direction of war 
most peculiarly demands those qualities which distinguish the exercise 
of power by a single hand.'' The Federalist No. 74, at 500 (Alexander 
Hamilton) (Jacob E. Cooke ed., 1961). And James Iredell (later an 
Associate Justice of the Supreme Court) argued in the North Carolina 
Ratifying Convention that ``[f]rom the nature of the thing, the command 
of armies ought to be delegated to one person only. The secrecy, 
despatch, and decision, which are necessary in military operations, can 
only be expected from one person.'' Debate in the North Carolina 
Ratifying Convention, in Jonathan Elliott, The Debates in the Several 
State Conventions on the Adoption of the Federal Constitution 107 (2d 
ed. Ayer Company, Publishers, Inc. 1987) (1888). See also 3 Joseph 
Story, Commentaries on the Constitution 1485, at 341 (1833) (in 
military matters, ``[u]nity of plan, promptitude, activity, and 
decision, are indispensable to success: and these can scarcely exist, 
except when single magistrate is entrusted exclusively with the 
power'').
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    Judicial decisions since the beginning of the Republic confirm the 
President's constitutional power and duty to repel military action 
against the United States and to take measures to prevent the 
recurrence of an attack. As Justice Joseph Story said long ago, ``[i]t 
may be fit and proper for the government, in the exercise of the high 
discretion confided to the executive, for great public purposes, to act 
on a sudden emergency, or to prevent an irreparable mischief, by 
summary measures, which are now found in the text of the laws.'' The 
Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). The Constitution 
entrusts the ``power [to) the executive branch of the Government to 
preserve order and insure the public safety in times of emergency, when 
other branches of the Government are unable to function, or their 
functioning would itself threaten the public safety.'' Duncan v. 
Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C. J., concurring). If the 
President is confronted with an unforeseen attack on the territory and 
people of the United States, or other immediate, dangerous threat to 
American interests and security, it is his constitutional 
responsibility to respond to that threat. See, e.g., The Prize Cases, 
67 U.S. (2 Black) 635, 668 (1862) (``If a war be made by invasion of a 
foreign nation, the President is not only authorized but bound to 
resist force by force . . . without waiting for any special legislative 
authority.''); Kahanamoku, 327 U.S. at 336 (Stone, C.J., concurring) 
(``Executive has broad discretion in determining when the public 
emergency is such as to give rise to the necessity'' for emergency 
measures); United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 
1806) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory 
authorization, it is ``the duty . . . of the executive magistrate . . . 
to repel an invading foe''); see also 3 Story, Commentaries Sec. 1485 
(``[t]he command and application of the public force . . . to maintain 
peace, and to resist foreign invasion'' are executive powers).
    The Department believes that the President's constitutional 
responsibility to defend the Nation may justify reasonable, but 
warrantless, counter-intelligence searches. As the Commander-in-Chief, 
the President must be able to use whatever means necessary to prevent 
attacks upon the United States; this power, by implication, includes 
the authority to collect information necessary for its effective 
exercise.
    This examination demonstrates that the current situation, in which 
Congress has recognized the President's authority to use force in 
response to a direct attack on the American homeland, has demonstrated 
the government's increased interest. The government's interest has 
changed from merely conducting foreign intelligence surveillance to 
counter intelligence operations by other nations, to one of preventing 
terrorist attacks against American citizens and property within the 
continental United States itself. The courts have observed that even 
the use of deadly force is reasonable under the Fourth Amendment if 
used in self-defense or to protect others. See, e. g., Romero v. Board 
of County Commissioners, 60 F.3d 702 (10th Cir. 1995), cert. denied 516 
U.S. 1073 (1996); O'Neal v. DeKalb County, 850 F.2d 653 
(11th Cir. 1988). Here, for Fourth Amendment purposes, the 
right to self-defense is not that of an individual, but that of the 
nation and of its citizens. Cf. In re Neagle, 135 U.S. 1 (1890) ; The 
Prize Cases, 67 U.S. (2 Black) 635 (1862). If the government's 
heightened interest in self-defense justifies the use of deadly force, 
then it certainly would also justify warrantless searches.
                                  III
    It is against this background that the change to FISA should be 
understood. Both the executive branch and the courts have recognized 
that national security searches against foreign powers and their agents 
need not comport with the same Fourth Amendment requirements that apply 
to domestic criminal investigations. FISA embodies the idea that, in 
this context, the Fourth Amendment applies differently than in the 
criminal context. Nonetheless, FISA itself is not required by the 
Constitution, nor is it necessarily the case that its current standards 
match exactly to Fourth Amendment standards. Rather, like the warrant 
process in the normal criminal context, FISA represents a statutory 
procedure that, if used, will create a presumption that the 
surveillance is reasonable under the Fourth Amendment. Thus, it is 
wholly appropriate to amend FISA to ensure that its provisions parallel 
the bounds of the Fourth Amendment's reasonableness test.
    The national security and foreign intelligence elements of the 
search justify its exemption from the standard law enforcement warrant 
process. After the enactment of FISA, for example, courts have 
emphasized the distinction between searches conducted to collect 
foreign intelligence and those undertaken for pursuing criminal 
prosecutions. Although this may be due, in part, to a statutory 
construction of the FISA provisions, these courts' language may be seen 
as having broader application. As the Second Circuit has emphasized, 
although courts, even prior to the enactment of FISA, concluded that 
the collection of foreign intelligence information constituted an 
exception to the warrant requirement, ``the governmental interests 
presented in national security investigations differ substantially from 
those presented in traditional criminal prosecutions.'' United States 
v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984). The Duggan Court held that 
FISA did not violate the Fourth Amendment because the requirements of 
FISA ``provide an appropriate balance between the individual's interest 
in privacy and the government's need to obtain foreign intelligence 
information.'' Id. at 74. The Court's holding was made in the context 
of acknowledging the reasonableness of ``the adoption of prerequisites 
to surveillance that are less stringent than those precedent to the 
issuance of a warrant for a criminal investigation.'' Id. at 73.
    Similarly, the Ninth Circuit found that the lowered probable cause 
showing required by FISA is reasonable because, although the 
application need not state that the surveillance is likely to uncover 
evidence of a crime, ``the purpose of their surveillance is not to 
ferret out criminal activity but rather gather intelligence, [and 
therefore] such a requirement would be illogical.'' United States v. 
Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987) (Kennedy, 
J.).\4\ And consistent with both the language of the second and Ninth 
Circuits, the First Circuit, in upholding the constitutionality of 
FISA, explained that ``[a]lthough evidence obtained under FISA 
subsequently may be used in criminal prosecutions, the investigation of 
criminal activity cannot be the primary purpose of the surveillance 
[and therefore] [t]he act is not to be used as an end-run around the 
Fourth Amendment's prohibition of warrantless searches.'' United States 
v. Johnson, 952 F.2d 656, 5%72 (1tht Cir. 1992) (citations omitted), 
cert. denied, 506 U.S. 816 (1992).
---------------------------------------------------------------------------
    \4\ The Ninth Circuit has reserved the question of whether the 
``primary purpose'' test is too strict. United States v. Sarkissian, 
841 F.2d 959, 964 (9th Cir. 1988)
---------------------------------------------------------------------------
    On the other hand, it is also clear that while FISA states that 
``the'' purpose of a search is for foreign surveillance, that need not 
be the only purpose. Rather, law enforcement considerations can be 
taken into account, so long as the: surveillance also has a legitimate 
foreign intelligence purpose. FISA itself makes provision for the use 
in criminal trials of evidence obtained as a result of FISA searches, 
such as rules for the handling of evidence obtained through FISA 
searches, 50 U.S.C. Sec. 1801(h) & 1806, and procedures for deciding 
suppression motions, id.Sec. 1806(e). In approving FISA, the Senate 
Select Committee on Intelligence observed: ``U.S. persons may be 
authorized targets, and the surveillance is part of an investigative 
process often designed to protect against the commission of serious 
crimes such as espionage, sabotage, assassinations, kidnapping, and 
terrorist; acts committed by or on behalf of foreign powers. 
Intelligence and criminal law enforcement tend to merge in this area.'' 
S. Rep. No. 95-701, at 10-11 (1978). The Committee also recognized that 
``foreign counterintelligence surveillance frequently seeks information 
in needed to detect or anticipate the commission of crime's,'' and that 
``surveillance conducting under [FISA] need not stop once conclusive 
evidence of a crime is obtained, but instead may be extended longer 
where protective measures other than arrest and prosecution are more 
appropriate.'' Id. at 11.
    The courts agree that the gathering of counter-intelligence need 
not be the only purpose of a constitutional FISA search. An ``otherwise 
valid FISA surveillance, is not tainted simply because the government 
can anticipate that the fruits of such surveillance may later be used, 
as allowed by Sec. 1866(bj, as evidence in a criminal trial.'' Duggan, 
743 F.2d at 78. This is due to the recognition that ``in many cases the 
concerns of the government with respect to foreign intelligence will 
overlap those with respect to law enforcement.'' Id. In order to police 
the line between legitimate foreign intelligence searches and pure 
domestic law enforcement operations, most courts have adopted the test 
that the ``primary purpose'' of a FISA search is to gather foreign 
intelligence. See id. United States v. Johnson, 952 F.2d 565, 572 (18th 
Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), 
cert. denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F2d 
1458, 1464 (11th Cir. 1987), cert. denied, 485 U.S. 937 (1988).: Not 
All courts, however, have felt compelled to adopt the primary purpose 
test. The Ninth Circuit has explicitly reserved the question whether 
the ``primary purpose'' is too strict and the appropriate test is 
simply whether there was a legitimate foreign intelligence purpose. 
United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir. 1988). No 
other Circuit has held that such a formulation would be 
unconstitutional.
    In light of this case law and FISA's statutory structure, we do not 
believe that an amendment of F18A from ``the'' purpose to ``a 
singificant'' purpose would be unconstitutional. So long as the 
government has a legitimate objective in obtaining foreign intelligence 
information, it should not matter whether it also has a collateral 
interest in obtaining information for a criminal prosecution. As courts 
have observed, the criminal law interests of the government do not 
taint a FISA search when its foreign intelligence objective is primary. 
This implies that a FISA search should not be invalid when the interest 
in criminal prosecution is significant, but there is still a legitimate 
foreign intelligence purpose for the search. This concept flows from 
the courts' recognition that the concerns of government with respect to 
foreign policy will often overlap with those of law enforcement.
    Further, there are other reasons that justify the constitutionality 
of the proposed change to FISA. First, as an initial matter, the 
alteration in the statute could not be facially unconstitutional. As 
the Court has held, in order to succeed a facial challenge to a statute 
must show that the law is invalid ``in every circumstance.'' Babbitt v. 
Sweet Home Chapter, 515 U.S. 687, 699 (1995). As the Court made clear 
in United States v. Salerno, 481 U.S. 739 (1987), ``[a] facial 
challenge to a legislative Act is, of course, the most difficult 
challenge to mount successfully, since the challenger must establish 
that no set of circumstances exists under which the Act would be 
valid.'' Id. at 745. Such a challenge would fail here. Even if FISA 
were amended to require that ``a'' purpose for the search be the 
collection of foreign intelligence, that class of searches would 
continue to include both searches in which foreign intelligence is the 
only purpose and searches in which it is the primary purpose--both 
permissible under current case law. A fortiori, if amending FISA to 
``a'' purpose would be constitutional, then changing the language to 
``a significant'' purpose--a somewhat higher standard--would meet 
Fourth Amendment requirements as well.
    Second, amending FISA would merely have the effect of changing the 
statute to more closely track the Constitution. Courts have recognized 
that the executive branch has the authority to conduct warrantless 
searches for foreign intelligence purposes, so long as they are 
reasonable under the Fourth Amendment. Although the few courts that 
have addressed the issue have followed a primary purpose test, it is 
not clear that the Constitution, FISA, or Supreme Court case law 
requires that test. We believe that the primary purpose test is more 
demanding than that called for by the Fourth Amendment's reasonableness 
requirement. Adopting the proposed FISA amendment will continue to make 
clear that the government must have a legitimate foreign surveillance 
purpose in order to conduct a FISA search. It would also recognize that 
because the executive can more fully assess the requirements of 
national security than can the courts, and because the President has a 
coristitutional duty to protect the national security, the courts 
should not deny him the authority to conduct intelligence searches even 
when the national security purpose is secondary to criminal 
prosecution.
    The FISA amendment would not permit unconstitutional searches. A 
FISA court still remains an Article III court. As such, it still has an 
obligation to reject FISA applications that do not truly qualify for 
the relaxed constitutional standards applicable to national security 
searches. Rejecting an individual application, however, would not 
amount to a declaration that the ``a significant'' purpose standard was 
unconstitutional. Rather, the Court would only be interpreting the new 
standard so as not to violate the Constitution, in accordance with the 
canon of statutory construction that courts should read statutes to 
avoid constitutional difficulties. See Public Citizen v. Department of 
Justice, 491 U.S. 440, 466 (1989); Edward J. DeBartolo Corp. v. Florida 
Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 
(1988). Amending FISA to, require only ``a'' purpose merely removes any 
difference between the statutory standard or reviewing FISA 
applications and the constitutional standard for national security 
searches.
    Third, it is not unconstitutional to establish a standard for FISA 
applications that may be less demanding than the current standard, 
because it seems clear that the balance of Fourth Amendment 
considerations has shifted in the wake of the September 11 attacks. As 
discussed earlier in this memo, the reasonableness of a search under 
the Fourth Amendment depends on the balance between the government's 
interests and the privacy rights of the individuals involved. As a 
result of the direct terrorist attacks upon the continental United 
States, the government's interest has reached perhaps its most 
compelling level, that defending the Nation from assault. This shift 
upward in governmental interest has the effect of expanding the class 
of reasonable searches under the Fourth Amendment. Correspondingly, 
changing the FISA standard to ``a significant'' purpose will allow FISA 
warrants to issue in that class of searches. A lower standard also 
recognizes that, as national security concerns in the wake of the 
September 11 attacks have dramatically increased, the constitutional 
powers of the executive branch have expanded, while judicial competence 
has correspondingly receded. Amending FISA only recognizes that the 
Fourth Amendment analysis has changed in light of the more compelling 
nature of the government's interests given the altered national 
security environment.
    Fourth, amending FISA in this manner would be consistent with the 
Fourth Amendment because it only adapts the statutory structure to a 
new type of counter-intelligence. FISA was enacted at a time when there 
was a clear distinction between foreign intelligence threats, which 
would be governed by more flexible standards, and domestic law 
enforcement, which was subject to the Fourth Amendment's requirement of 
probable cause. Even at the time of the act's passage in 1978, however, 
there was a growing realization that ``intelligence and criminal law 
enforcement tend to merge in [the] area'' of foreign 
counterintelligence and counter terrorism. S. Rep. No. 95-701, at 11. 
September 11's events demonstrate that the fine distinction between 
foreign intelligence gathering and domestic law enforcement has broken 
down. Terrorists, supported by foreign powers or interests, had lived 
in the United States for substantial periods of time received training 
within the country, and killed thousands of civilians by hijacking 
civilian airliners. The attack, while supported from abroad, was 
carried out from within the United States itself and violated numerous 
domestic criminal laws. Thus, the nature of the national security 
threat, while still involving foreign control and requiring foreign 
counterintelligence, also has a significant domestic component, which 
may involve domestic law enforcement. Fourth Amendment doctrine, based 
as it is ultimately upon reasonableness, will have to take into account 
that national security threats in future cannot be so easily cordoned 
off from domestic criminal investigation. As a result, it is likely 
that courts will allow for more mixture between foreign intelligence 
gathering and domestic criminal investigation, at least in the counter-
terrorism context. Changing the FISA standard from ``the'' purpose to 
``a significant'' purpose would be consistent with this likely 
development.
    For the foregoing reasons, we believe that changing FISA's 
requirement that ``the'' purpose of a FISA search be to collect foreign 
intelligence to ``a significant'' purpose will not violate the 
Constitution. We hope that making the Committee aware of the 
Department's views is helpful to its deliberation. Please do not 
hesitate to contact my office if we may be of further assistance. The 
Office of Management and Budget has advised us that from the 
perspective of the Administration's program, there is no objection to 
submission of this letter.
            Sincerely,
                                           Daniel J. Bryant
                                         Assistant Attorney General

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