From the 'Lectric Law Library's Stacks
Statement of Gregory Nojeim, ACLU Legislative Counsel
May 2, 1995
WASHINGTON -- Last month, the ACLU distributed a background briefing on an important, if not very high profile, proposal by the Clinton Administration that we feared would slip through Congress without much public attention. That proposal, the Omnibus Counterterrorism Act of 1995, would, we said, eviscerate the Constitution and the Bill of Rights to an extraordinary extent.
The tragic bombing of the federal building in Oklahoma City nearly two weeks ago has drawn the attention of lawmakers, the media and the American people to that bill and to other proposals to fight terrorism, and to the civil liberties implications of these proposals.
Suddenly, much of Washington's attention was focused on what steps the government should take to prevent further terrorism attacks in this country. Suddenly, the American public was being told that Congress needed to approve an extensive list of measures that would make it easier for the FBI to infiltrate and eavesdrop on any domestic group by lowering the threshold of evidence needed to justify such invasive measures. Suddenly, the President was urging Congress to move speedily in passing his omnibus proposal, which would allow the government to deport aliens, who have been convicted of no crime, based on information known only to the government. The bill would also allow the President to declare any foreign group -- and its American branches -- "detrimental to the interests of the United States," and bar judicial review of such proclamations.
Congressional leaders seem to have wisely decided not to rush forward with this legislation, but instead to move cautiously and methodically in reviewing any proposals to combat terrorism. It is important to remember that we at the ACLU, like all Americans, want our government to take the steps necessary to make us safer. What we don't want, also like many Americans, is to repeat the mistakes of the past and erode constitutional principles that have shaped our society and remain at the core of our freedom and liberty.
We were pleased to learn at last week's Senate hearings that neither the FBI nor the Justice Department is seeking to alter the Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations. It is important to remember that the FBI has the power, under that document, to launch an investigation as long as it has "reasonable indication" (defined as substantially less than probable cause) that a crime is being -- or is about to be -- committed.
Even lacking such a reasonable indication, the Guidelines permit the FBI to infiltrate groups and conduct undercover operations and use physical and photographic surveillance in a "preliminary inquiry" triggered by nothing more than information "responsible handling" of which requires further scrutiny. To lower these thresholds would be to allow the FBI to investigate individuals or organizations based solely on their speech or political associations. Other proposals to give the FBI enhanced access to credit records, hotel, motel and motor carrier records, and access to the list of phone calls made to and from a particular person, all without a probable cause determination by an independent magistrate or judge, concern us greatly.
And we remain greatly concerned about the President's proposed Omnibus Counterterrorism Act of 1995. This bill would authorize the President -- and not just this president, but any president -- to designate any foreign group or its American branch as "terrorist" and the designation would not be reviewable by any court. Thus, under this proposal, if a president were to exceed the statute and overreach -- perhaps by deciding that Amnesty International were an organization whose interests were counter to those of the United States -- no one could legally challenge his decisions.
And once Amnesty, or any other organization, were so designated, a number of draconian steps could be taken. Resident aliens who have been convicted of no crime could be deported in the dead of night based on secret information they cannot challenge, or for vague "offenses" like being a spokesperson for such an organization. American citizens who contribute to entirely peaceful activities of such groups -- such as, to use another example, contributing to a fund to assist the orphaned children of I.R.A. members -- could be subject to felony prosecution and lengthy prison sentences.
There is much in the president's proposals that does not raise the threat of unraveling civil liberties. If Congress is to decide, for example, that the FBI needs 1,000 additional agents, the ACLU would certainly not object provided those agents all assigned to investigating criminal activity, not activity protected by the First Amendment. If Congress were to make it easier to trace dangerous chemicals by requiring manufacturers and importers to tag their materials, the ACLU would clearly not object.
But we pledge to remain ever vigilant against giving the President or domestic law enforcement authorities powers that could lead -- as they have in the past -- to investigations based solely on speech or political association. We urge Congress and the President to take the steps necessary to make us safer, but to avoid, at all costs, those that will make us less free.
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