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.
