Mr. President, I have asked for this time
to speak about the anti-terrorism bill before us, H.R. 3162. As
we address this bill, we are especially mindful of the terrible
events of September 11 and beyond, which led to the bill’s proposal
and its quick consideration in the Congress.
This has been a tragic time in our country.
Before I discuss this bill, let me first pause to remember, through
one small story, how September 11th has irrevocably changed
so many lives. In a letter to The Washington Post recently,
a man wrote that as he went jogging near the Pentagon, he came across
the makeshift memorial built for those who lost their lives there.
He slowed to a walk as he took in the sight before him – the red,
white and blue flowers covering the structure, and then, off to
the side, a second, smaller memorial with a card.
The card read, " Happy Birthday Mommy.
Although you died and are no longer with me, I feel as if I
still have you in my life. I think about you every day."
After reading the card, the man felt as if
he were "drowning in the names of dead mothers, fathers, sons and
daughters." The author of this letter shared a moment in his own
life that so many of us have had -- the moment where televised pictures
of the destruction are made painfully real to us. We read a card,
or see the anguished face of a grieving loved one, and we suddenly
feel the enormity of what has happened to so many American families,
and to all of us as a people.
We all also had our own initial reactions,
and my first and most powerful emotion was a solemn resolve to stop
these terrorists. And that remains my principal reaction to these
events. But I also quickly realized that two cautions were necessary,
and I raised them on the Senate floor the day after the attacks.
The first caution was that we must continue
to respect our Constitution and protect our civil liberties in the
wake of the attacks. As the chairman of the Constitution Subcommittee
of the Judiciary Committee, I recognize that this is a different
world with different technologies, different issues, and different
threats. Yet we must examine every item that is proposed in response
to these events to be sure we are not rewarding these terrorists
and weakening ourselves by giving up the cherished freedoms that
they seek to destroy.
The second caution I issued was a warning
against the mistreatment of Arab Americans, Muslim Americans, South
Asians, or others in this country. Already, one day after the attacks,
we were hearing news reports that misguided anger against people
of these backgrounds had led to harassment, violence, and even death.
I suppose I was reacting instinctively to
the unfolding events in the spirit of the Irish statesman John Philpot
Curran, who said: "The condition upon which God hath given liberty
to man is eternal vigilance."
During those first few hours after the attacks,
I kept remembering a sentence from a case I had studied in law school.
Not surprisingly, I didn’t remember which case it was, who wrote
the opinion, or what it was about, but I did remember these words:
"While the Constitution protects against invasions of individual
rights, it is not a suicide pact." I took these words as a challenge
to my concerns about civil liberties at such a momentous time in
our history; that we must be careful to not take civil liberties
so literally that we allow ourselves to be destroyed.
But upon reviewing the case itself, Kennedy
v. Mendoza-Martinez, I found that Justice Arthur Goldberg had made
this statement but then ruled in favor of the civil liberties position
in the case, which was about draft evasion. He elaborated:
"It is fundamental that the great powers
of Congress to conduct war and to regulate the Nation’s foreign
relations are subject to the constitutional requirements of
due process. The imperative necessity for safeguarding these
rights to procedural due process under the gravest of emergencies
has existed throughout our constitutional history, for it is
then, under the pressing exigencies of crisis, that there is
the greatest temptation to dispense with fundamental constitutional
guarantees which, it is feared, will inhibit governmental action.
"The Constitution of the United States is a law for rulers and
people, equally in war and peace, and covers with the shield
of its protection all classes of men, at all times, and under
all circumstances ... In no other way can we transmit to posterity
unimpaired the blessings of liberty, consecrated by the sacrifices
of the Revolution."
I have approached the events of the past month
and my role in proposing and reviewing legislation relating to it
in this spirit. I believe we must we must redouble our vigilance.
We must redouble our vigilance to ensure our security and to prevent
further acts of terror. But we must also redouble our vigilance
to preserve our values and the basic rights that make us who we
are.
The Founders who wrote our Constitution and
Bill of Rights exercised that vigilance even though they had recently
fought and won the Revolutionary War. They did not live in comfortable
and easy times of hypothetical enemies. They wrote a Constitution
of limited powers and an explicit Bill of Rights to protect liberty
in times of war, as well as in 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, German-Americans, and
Italian-Americans during World War II, the blacklisting of supposed
communist sympathizers during the McCarthy era, and the surveillance
and harassment of antiwar protesters, including Dr. Martin Luther
King Jr., during the Vietnam War. We must not allow these pieces
of our past to become prologue.
Mr. President, even in our great land, wartime
has sometimes brought us the greatest tests of our Bill of Rights.
For example, during the Civil War, the government arrested some
13,000 civilians, implementing a system akin to martial law. President
Lincoln issued a proclamation ordering the arrest and military trial
of any persons "discouraging volunteer enlistments, or resisting
militia drafts." Wisconsin provided one of the first challenges
of this order. Draft protests rose up in Milwaukee and Sheboygan.
And an anti-draft riot broke out among Germans and Luxembourgers
in Port Washington, Wisconsin. When the government arrested one
of the leaders of the riot, his attorney sought a writ of habeas
corpus. His military captors said that the President had abolished
the writ. The Wisconsin Supreme Court was among the first to rule
that the President had exceeded his authority.
In 1917, the Postmaster General revoked the
mailing privileges of the newspaper the Milwaukee Leader
because he felt that some of its articles impeded the war effort
and the draft. Articles called the President an aristocrat and called
the draft oppressive. Over dissents by Justices Brandeis and Holmes,
the Supreme Court upheld the action.
During World War II, President Roosevelt signed
orders to incarcerate more than 110,000 people of Japanese origin,
as well as some roughly 11,000 of German origin and 3,000 of Italian
origin.
Earlier this year, I introduced legislation
to set up a commission to review the wartime treatment of Germans,
Italians, and other Europeans during that period. That bill came
out of heartfelt meetings in which constituents told me their stories.
They were German-Americans, who came to me with some trepidation.
They had waited 50 years to raise the issue with a member of Congress.
They did not want compensation. But they had seen the government’s
commission on the wartime internment of people of Japanese origin,
and they wanted their story to be told, and an official acknowledgment
as well. I hope, Mr. President, that we will move to pass this important
legislation early next year. We must deal with our nation’s past,
even as we move to ensure our nation’s future.
Now some may say, indeed we may hope, that
we have come a long way since the those days of infringements on
civil liberties. But there is ample reason for concern. And I have
been troubled in the past six weeks by the potential loss of commitment
in the Congress and the country to traditional civil liberties.
As it seeks to combat terrorism, the Justice
Department is making extraordinary use of its power to arrest and
detain individuals, jailing hundreds of people on immigration violations
and arresting more than a dozen "material witnesses" not charged
with any crime. Although the government has used these authorities
before, it has not done so on such a broad scale. Judging from government
announcements, the government has not brought any criminal charges
related to the attacks with regard to the overwhelming majority
of these detainees.
For example, the FBI arrested as a material
witness the San Antonio radiologist Albader Al-Hazmi, who has a
name like two of the hijackers, and who tried to book a flight to
San Diego for a medical conference. According to his lawyer, the
government held Al-Hazmi incommunicado after his arrest, and it
took six days for lawyers to get access to him. After the FBI released
him, his lawyer said, "This is a good lesson about how frail our
processes are. It’s how we treat people in difficult times like
these that is the true test of the democracy and civil liberties
that we brag so much about throughout the world." I agree with those
statements.
Now, it so happens that since early 1999,
I have been working on another bill that is poignantly relevant
to recent events: legislation to prohibit racial profiling, especially
the practice of targeting pedestrians or drivers for stops and searches
based on the color of their skin. Before September 11th,
people spoke of the issue mostly in the context of African-Americans
and Latino-Americans who had been profiled. But after September
11, the issue has taken on a new context and a new urgency.
Even as America addresses the demanding security
challenges before us, we must strive mightily also to guard our
values and basic rights. We must guard against racism and ethnic
discrimination against people of Arab and South Asian origin and
those who are Muslim.
We who don’t have Arabic names or don’t wear
turbans or headscarves may not feel the weight of these times as
much as Americans from the Middle East and South Asia do. But as
the great jurist Learned Hand said in a speech in New York’s Central
Park during World War II: "The spirit of liberty is the spirit which
seeks to understand the minds of other men and women; the spirit
of liberty is the spirit which weighs their interests alongside
its own without bias . . . ."
Was it not at least partially bias, however,
when passengers on a Northwest Airlines flight in Minneapolis three
weeks ago insisted that Northwest remove from the plane three Arab
men who had cleared security?
Of course, given the enormous anxiety and
fears generated by the events of September 11th, it would
not have been difficult to anticipate some of these reactions, both
by our government and some of our people. Some have said rather
cavalierly that in these difficult times we must accept some reduction
in our civil liberties in order to be secure.
Of course, 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 that allowed the police to search your home at
any time for any reason; if we lived in a country that allowed the
government to open your mail, eavesdrop on your phone conversations,
or intercept your email communications; if we lived in a country
that allowed the government to hold people in jail indefinitely
based on what they write or think, or based on mere suspicion that
they are up to no good, then the government would no doubt discover
and arrest more terrorists.
But that probably would not be a country in
which we would want to live. And that would not be a country for
which we could, in good conscience, ask our young people to fight
and die. In short, that would not be America.
Preserving our freedom is one of the main
reasons that we are now engaged in this new war on terrorism. We
will lose that war without firing a shot if we sacrifice the liberties
of the American people.
That is why I found the antiterrorism bill
originally proposed by Attorney General Ashcroft and President Bush
to be troubling.
The Administration’s proposed bill contained
vast new powers for law enforcement, some seemingly drafted in haste
and others that came from the FBI’s wish list that Congress has
rejected in the past. You may remember that the Attorney General
announced his intention to introduce a bill shortly after the September
11 attacks. He provided the text of the bill the following Wednesday,
and urged Congress to enact it by the end of the week. That was
plainly impossible, but the pressure to move on this bill quickly,
without deliberation and debate, has been relentless ever since.
It is one thing to shortcut the legislative
process in order to get federal financial aid to the cities hit
by terrorism. We did that, and no one complained that we moved too
quickly. It is quite another to press for the enactment of sweeping
new powers for law enforcement that directly affect the civil liberties
of the American people without due deliberation by the peoples’
elected representatives.
Fortunately, cooler heads prevailed at least
to some extent, and while this bill has been on a fast track, there
has been time to make some changes and reach agreement on a bill
that is less objectionable than the bill that the Administration
originally proposed.
As I will discuss in a moment, I have concluded
that this bill still does not strike the right balance between empowering
law enforcement and protecting civil liberties. But that does not
mean that I oppose everything in the bill. Indeed many of its provisions
are entirely reasonable, and I hope they will help law enforcement
more effectively counter the threat of terrorism.
For example, it is entirely appropriate that
with a warrant the FBI be able to seize voice mail messages as well
as tap a phone. It is also reasonable, even necessary, to update
the federal criminal offense relating to possession and use of biological
weapons. It made sense to make sure that phone conversations carried
over cables would not have more protection from surveillance than
conversations carried over phone lines. And it made sense to stiffen
penalties and lengthen or eliminate statutes of limitation for certain
terrorist crimes.
There are other non-controversial provisions
in the bill that I support – those to assist the victims of crime,
to streamline the application process for public safety officers
benefits and increase those benefits, to provide more funds to strengthen
immigration controls at our Northern borders, to expedite the hiring
of translators at the FBI, and many others.
In the end, however, my focus on this bill,
as Chair of the Constitution Subcommittee of the Judiciary Committee
in the Senate, was on those provisions that implicate our constitutional
freedoms. And it was in reviewing those provisions that I came to
feel that the Administration’s demand for haste was inappropriate;
indeed, it was dangerous. Our process in the Senate, as truncated
as it was, did lead to the elimination or significant rewriting
of a number of audacious proposals that I and many other members
found objectionable.
For example, the original Administration proposal
contained a provision that would have allowed the use in U.S. criminal
proceedings against U.S. citizens of information obtained by foreign
law enforcement agencies in wiretaps that would be illegal in this
country. In other words, evidence obtained in an unconstitutional
search overseas was to be allowed in a U.S. court.
Another provision would have broadened the
criminal forfeiture laws to permit – prior to conviction – the freezing
of assets entirely unrelated to an alleged crime. The Justice Department
has wanted this authority for years, and Congress has never been
willing to give it. For one thing, it touches on the right to counsel,
since assets that are frozen cannot be used to pay a lawyer. The
courts have almost uniformly rejected efforts to restrain assets
before conviction unless they are assets gained in the alleged criminal
enterprise. This proposal, in my view, was simply an effort on the
part of the Department to take advantage of the emergency situation
and get something that they’ve wanted to get for a long time.
The foreign wiretap and criminal forfeiture
provisions were dropped from the bill that we considered in the
Senate. Other provisions were rewritten based on objections that
I and others raised about them. For example, the original bill contained
sweeping permission for the Attorney General to get copies of educational
records without a court order. The final bill requires a court order
and a certification by the Attorney General that he has reason to
believe that the records contain information that is relevant to
an investigation of terrorism.
So the bill before us is certainly improved
from the bill that the Administration sent to us on September 19,
and wanted us to pass on September 21. But again, in my judgement,
it does not strike the right balance between empowering law enforcement
and protecting constitutional freedoms. Let me take a moment to
discuss some of the shortcomings of the bill.
First, the bill contains some very significant
changes in criminal procedure that will apply to every federal criminal
investigation in this country, not just those involving terrorism.
One provision would greatly expand the circumstances in which law
enforcement agencies can search homes and offices without notifying
the owner prior to the search. The longstanding practice under the
Fourth Amendment of serving a warrant prior to executing a search
could be easily avoided in virtually every case, because the government
would simply have to show that it has "reasonable cause to believe"
that providing notice "may" "seriously jeopardize an investigation."
This is a significant infringement on personal liberty.
Notice is a key element of Fourth Amendment
protections. It allows a person to point out mistakes in a warrant
and to make sure that a search is limited to the terms of a warrant.
Just think about the possibility of the police showing up at your
door with a warrant to search your house. You look at the warrant
and say, "yes, that’s my address, but the name on the warrant isn’t
me." And the police realize a mistake has been made an go away.
If you’re not home, and the police have received permission to do
a "sneak and peak" search, they can come in your house, look around,
and leave, and may never have to tell you.
Another very troubling provision has to do
with the effort to combat computer crime. The bill allows law enforcement
to monitor a computer with the permission of its owner or operator,
without the need to get a warrant or show probable cause. That’s
fine in the case of a so called "denial of service attack" or plain
old computer hacking. A computer owner should be able to give the
police permission to monitor communications coming from what amounts
to a trespasser on the computer.
As drafted in the Senate bill, however, the
provision might permit an employer to give permission to the police
to monitor the e-mails of an employee who has used her computer
at work to shop for Christmas gifts. Or someone who uses a computer
at a library or at school and happens to go to a gambling or pornography
site in violation of the Internet use policies of the library or
the university might also be subjected to government surveillance
– without probable cause and without any time limit. With this one
provision, fourth amendment protections are potentially eliminated
for a broad spectrum of electronic communications.
I am also very troubled by the broad expansion
of government power under the Foreign Intelligence Surveillance
Act, known as FISA. When Congress passed FISA in 1978 it granted
to the executive branch the power to conduct surveillance in foreign
intelligence investigations without meeting the rigorous probable
cause standard under the Fourth Amendment that is required for criminal
investigations. There is a lower threshold for obtaining a wiretap
order from the FISA court because the FBI is not investigating a
crime, it is investigating foreign intelligence activities. But
the law currently requires that intelligence gathering be the primary
purpose of the investigation in order for this lower standard to
apply.
This bill changes that requirement. The government
now will only have to show that intelligence is a "significant purpose"
of the investigation. So even if the primary purpose is a
criminal investigation, the heightened protections of the Fourth
Amendment won’t apply.
It seems obvious that with this lower standard,
the FBI will try to use FISA as much as it can. And of course, with
terrorism investigations that won’t be difficult, because the terrorists
are apparently sponsored or at least supported by foreign governments.
This means that the fourth amendment rights will be significantly
curtailed in many investigations of terrorist acts.
The significance of the breakdown of the distinction
between intelligence and criminal investigations becomes apparent
when you see the other expansions of government power under FISA
in this bill. One provision that troubles me a great deal is a provision
that permits the government under FISA to compel the production
of records from any business regarding any person, if that information
is sought in connection with an investigation of terrorism or espionage.
Now we’re not talking here about travel records
pertaining to a terrorist suspect, which we all can see can be highly
relevant to an investigation of a terrorist plot. FISA already gives
the FBI the power to get airline, train, hotel, car rental and other
records of a suspect.
But under this bill, the government can compel
the disclosure of the personal records of anyone – perhaps someone
who worked with, or lived next door to, or went to school with,
or sat on an airplane with, or has been seen in the company of,
or whose phone number was called by -- the target of the investigation.
And under this new provisions all business
records can be compelled, including those containing sensitive personal
information like medical records from hospitals or doctors, or educational
records, or records of what books someone has taken out of the library.
This is an enormous expansion of authority, under a law that provides
only minimal judicial supervision.
Under this provision, the government can apparently
go on a fishing expedition and collect information on virtually
anyone. All it has to allege in order to get an order for these
records from the court is that the information is sought for an
investigation of international terrorism or clandestine intelligence
gathering. That’s it. On that minimal showing in an ex parte application
to a secret court, with no showing even that the information is
relevant to the investigation, the government can lawfully
compel a doctor or hospital to release medical records, or a library
to release circulation records. This is a truly breathtaking expansion
of police power.
Let me turn to a final area of real concern
about this legislation, which I think brings us full circle to the
cautions I expressed on the day after the attacks. There are two
very troubling provisions dealing with our immigration laws in this
bill.
First, the Administration’s original proposal
would have granted the Attorney General extraordinary powers to
detain immigrants indefinitely, including legal permanent residents.
The Attorney General could do so based on mere suspicion that the
person is engaged in terrorism. I believe the Administration was
really over-reaching here, and I am pleased that Senator Leahy was
able to negotiate some protections. The Senate bill now requires
the Attorney General to charge the immigrant within seven days with
a criminal offense or immigration violation. In the event that the
Attorney General does not charge the immigrant, the immigrant must
be released.
While this protection is an improvement, the
provision remains fundamentally flawed. Even with this seven-day
charging requirement, the bill would nevertheless continue to permit
the indefinite detention in two situations. First, immigrants who
win their deportation cases could continue to be held if the Attorney
General continues to have suspicions. Second, this provision creates
a deep unfairness to immigrants who are found not to be deportable
for terrorism but have an immigration status violation, such as
overstaying a visa. If the immigration judge finds that they are
eligible for relief from deportation, and therefore can stay in
the country because, for example, they have longstanding family
ties here, the Attorney General could continue to hold them.
Now, I am pleased that the final version of
the legislation includes a few improvements over the bill that passed
the Senate. In particular, the bill would require the Attorney General
to review the detention decision every six months and would allow
only the Attorney General or Deputy Attorney General, not lower
level officials, to make that determination. While I am pleased
these provisions are included in the bill, I believe it still falls
short of meeting even basic constitutional standards of due process
and fairness. The bill continues to allow the Attorney General to
detain persons based on mere suspicion. Our system normally requires
higher standards of proof for a deprivation of liberty. For example,
deportation proceedings are subject to a clear and convincing evidence
standard. Criminal convictions, of course, require proof beyond
a reasonable doubt.
The bill also continues to deny detained persons
a trial or hearing where the government would be required to prove
that the person is, in fact, engaged in terrorist activity. This
is unjust and inconsistent with the values our system of justice
holds dearly.
Another provision in the bill that deeply
troubles me allows the detention and deportation of people engaging
in innocent associational activity. It would allow for the detention
and deportation of individuals who provide lawful assistance to
groups that are not even designated by the Secretary of State as
terrorist organizations, but instead have engaged in vaguely defined
"terrorist activity" sometime in the past. To avoid deportation,
the immigrant is required to prove a negative: that he or she did
not know, and should not have known, that the assistance would further
terrorist activity.
This language creates a very real risk that
truly innocent individuals could be deported for innocent associations
with humanitarian or political groups that the government later
chooses to regard as terrorist organizations. Groups that might
fit this definition could include Operation Rescue, Greenpeace,
and even the Northern Alliance fighting the Taliban in northern
Afghanistan. This provision amounts to "guilt by association," which
I believe violates the First Amendment.
And speaking of the First Amendment, under
this bill, a lawful permanent resident who makes a controversial
speech that the government deems to be supportive of terrorism might
be barred from returning to his or her family after taking a trip
abroad.
Despite assurances from the Administration
at various points in this process that these provisions that implicate
associational activity would be improved, there have been no changes
in the bill on these points since it passed the Senate.
Now here’s where my cautions in the aftermath
of the terrorist attacks and my concern over the reach of the anti-terrorism
bill come together. To the extent that the expansive new immigration
powers that the bill grants to the Attorney General are subject
to abuse, who do we think is most likely to bear the brunt of that
abuse? It won’t be immigrants from Ireland, it won’t be immigrants
from El Salvador or Nicaragua, it won’t even be immigrants from
Haiti or Africa. It will be immigrants from Arab, Muslim, and South
Asian countries. In the wake of these terrible events, our government
has been given vast new powers and they may fall most heavily on
a minority of our population who already feel particularly acutely
the pain of this disaster.
When concerns of this kind have been raised
with the Administration and supporters of this bill they have told
us, "don’t worry, the FBI would never do that." I call on the Attorney
General and the Justice Department to ensure that my fears are not
borne out.
The anti-terrorism bill that we consider in
the Senate today highlights the march of technology, and how that
march cuts both for and against personal liberty. Justice Brandeis
foresaw some of the future in a 1928 dissent, when he wrote:
"The progress of science in furnishing
the Government with means of espionage is not likely to stop
with wire-tapping. Ways may some day be developed by which the
Government, without removing papers from secret drawers, can
reproduce them in court, and by which it will be enabled to
expose to a jury the most intimate occurrences of the home.
. . . Can it be that the Constitution affords no protection
against such invasions of individual security?"
We must grant law enforcement the tools that
it needs to stop this terrible threat. But we must give them only
those extraordinary tools that they need and that relate specifically
to the task at hand.
In the play, "A Man for All Seasons," Sir
Thomas More questions the bounder Roper whether he would level the
forest of English laws to punish the Devil. "What would you do?"
More asks, "Cut a great road through the law to get after the Devil?"
Roper affirms, "I’d cut down every law in England to do that." To
which More replies:
"And when the last law was down, and the
Devil turned round on you – where would you hide, Roper, the
laws all being flat? This country’s planted thick with laws
from coast to coast . . . and if you cut them down . . . d’you
really think you could stand upright in the winds that would
blow then? Yes, I’d give the Devil benefit of law, for my own
safety’s sake. "
We must maintain our vigilance to preserve
our laws and our basic rights.
We in this body have a duty to analyze, to
test, to weigh new laws that the zealous and often sincere advocates
of security would suggest to us. This is what I have tried to do
with this anti-terrorism bill. And that is why I will vote against
this bill when the roll is called.
Protecting the safety of the American people
is a solemn duty of the Congress; we must work tirelessly to prevent
more tragedies like the devastating attacks of September 11th.
We must prevent more children from losing their mothers, more wives
from losing their husbands, and more firefighters from losing their
heroic colleagues. But the Congress will fulfill its duty only when
it protects both the American people and the freedoms at
the foundation of American society. So let us preserve our heritage
of basic rights. Let us practice as well as preach that liberty.
And let us fight to maintain that freedom that we call America.
I yield the floor.
