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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
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
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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