Hearings on Wiretapping and other Terrorism Proposals
Testimony of David B. Kopel
Associate Policy Analyst
Committee on on the Judiciary
United States Senate
May 24, 1995
* There is no terrorism crisis mandating that legislation be hurried through Congress without careful consideration. According to the FBI, there were no terrorist crimes perpetrated in the United States in 1994. In the last eleven years in the United States, there has been only one violent international terrorist incident.
* Both the Clinton Clinton and Dole terrorism bills define almost all violent and property crimes, no matter how trivial, as “terrorist” offenses. The bills thereby federalize virtually the entire criminal law.
* Both bills eliminate all restraints on domestic use of the military, as well as jurisdictional restraints on IRS, BATF, and other agencies, for action against “terrorist” offenses.
* The bills allow in certain cases trials with secret evidence.
* The bills broadly expand wiretap authority, in some cases without court order, and allow some illegally gathered wiretaps into evidence.
The heinous bombing of the Alfred P. Murrah federal building in Oklahoma City has understandably raised public fears of terrorism. As is common after sensational crimes, some persons have revived their call for a bigger federal government and a narrower Constitution. This Policy Analysis examines various restrictions on civil liberty which have been proposed as a response to Oklahoma City.
Since draconian legislation is sometimes justified as being what the people demand, two points should be kept in mind. First, a large fraction of the population, not just a tiny fringe, is afraid of the federal government. According to a recent Gallup poll, 39 percent of Americans believe “the federal government has become so large and powerful it poses an immediate threat to the rights and freedoms of ordinary citizens.” If the word “immediate” is omitted, 52% of the population is afraid of the federal government.
Contrary to stereotypes about “angry white men,” people fearful of misuse of federal power tend to be female more than male, black more than white, and liberal more than conservative. Repressive measures, rather than reassuring the American public, will intensify the fears which are already widely shared.
Second, in the aftermath of a tragedy, it is not hard for insta-polls to report large majorities in favor of various repressive measures, especially when described at a high level of generality, with all the repressive details left out. (For example, “Should the government have more power to keep an eye on terrorist groups?” will obtain higher poll numbers than “Should the government be allowed to infiltrate non-violent, non-criminal dissident groups and be allowed to use wiretaps without a court order”?) In the long run, public officials are expected to exercise judgement, and not blindly rush into measures which may have short-term popularity. The most thorough public opinion survey of Americans’ attitudes towards Constitutional rights included this question: “Suppose the President and Congress have to violate a Constitutional principle to pass an important law the people wanted. Would you support them in this action?” Twenty-eight percent said yes, “because the Constitution shouldn’t be allowed to stand in the way of what the people need and want.” Forty-nine percent said no, “because protecting the Constitution is more important to the national welfare than any law could possibly be.”(1)
Indeed, the precise reason for putting certain fundamental rights in the Constitution is to protect them from transient majorities.(2) In long-term perspective, the herding of American citizens of Japanese descent into concentration camps during WWII was a horrible human rights violation.(3) But at the time, public opinion and the press heavily favored the concentration camps, despite the total lack of evidence that these Americans were disloyal. And certainly national security was in far graver danger in early 1942 than it is today.
But because terrorism, like child abuse (or Communism in previous decades) provokes such intense concerns, there is temptation to be careless in choosing the weapons to fight these evils. From the Alien and Sedition Acts in 1798 to the Palmer Raids in 1920 to McCarthyism in the 1950s, cynical politicians who have manipulated popular fears of aliens and radicals have done tremendous damage to the lives of innocent people and to the fundamental principles of Americanism.
Today, Congress stands poised to repeat the mistakes of the past, as vast numbers of people are smeared with guilt by (very tenuous) association. It is not often that one sees the Presbyterian Church and the American Friends Service Committee standing shoulder-to-shoulder with the National Rifle Association and Americans for Tax Reform.
That such diverse groups can find common ground, along with other organizations, to warn about the dangers of proposed legislation sharply curtailing civil liberty should indicate just how serious is the current threat to our Constitution.(4) President Clinton was right to characterize the Oklahoma City bombing as “an attack on our way of life.” If Oklahoma City becomes a pretext for the constriction of the Bill of Rights, then we will have handed terrorism a victory which it could never have won for itself.
There is No Terrorism Crisis
“By enabling terrorists to appear much stronger than they really are, the media often find themselves working Pour le roi de Prusse,” observed one historian.(5) Contrary to the imagery of some irresponsible segments of the media (and their Congressional analogues), there is no need to legislate an atmosphere of panic and hysteria. According to the State Department, international terrorist attacks are at their lowest level in 23 years.(6) In the United States in the last eleven years, according to the FBI, there have been only two international terrorist incidents. (One was the World Trade Center bombing; the other was a trespassing incident at the Iranian mission to the United Nations, in which five critics of the Iranian regime took over the mission’s offices, and refused to leave.)(7)
As for incidents of domestic terrorism, there were none in the United States in 1994, nor were there any preventions of terrorist incidents. In 1993, there were 11 incidents classified by the FBI as “terrorist.” Nine of those eleven incidents took place one night in Chicago when animal rights activists set off small incideniary devices in four department stores that sell fur.(8)
Combining domestic and international terrorism, and also accounting for suspected terrorist acts, the total terrorist incident count in the United State is as follows:
Terrorist Incidents in the United States
Actual Prevented Suspected
1994 0 0 1
1993 11 7 2
1992 4 0 0
1991 5 4 1
1990 7 5 1
1989 4 7 16
Of these incidents, only one (the 1993 World Trade Center bombing) was classified as international in origin.(9)
The Oklahoma City bombing was one of the most terrible single crimes in American history, but it was just that: an isolated, single crime. It was emphatically not part of a trend towards increasing terrorism.
The British Tragedy
More government secrecy, more police powers to detain people at will, less governmental accountability, and less freedom are not novel responses to terrorism. They are precisely the approach that has been taken in Great Britain since the early 1970s. The British lesson should be a caution to American politicians who feel confident that the only thing wrong with anti-terrorism policy is that the Bill of Rights has been taken too far.
In 1974, Irish Republican Army terrorists bombed pubs in Birmingham, killing twenty-one people. Home Secretary Roy Jenkins introduced the Prevention of Terrorism (Temporary Provisions) Bill. Approved without objection in Parliament, the Bill was supposed to expire in one year, but has been renewed every year. The Bill included a smorgasboard of civil liberties restrictions, most of which are now being proposed, with some variation, in the United States.
Under the Bill, the police may stop and search without warrant any person suspected of terrorism. They may arrest any person they “reasonably suspect” supports an illegal organization, or any person who has participated in terrorist activity. An arrested person may be detained up to forty-eight hours and then for five more days upon the authority of the Secretary of State.
Of the 6,246 people detained between 1974 and 1986, 87 percent were never charged with any offense. Many detainees reported that they were intimidated during detention and prevented from contacting their families.
The Prevention of Terrorism Bill also makes it illegal even to organize a private or public meeting addressed by a member of a proscribed organization, or to wear clothes indicating support of such an organization.(10)
The Act allows the Secretary of State to issue an “exclusion order” barring a person from ever entering a particular part of the United Kingdom, such as Northern Ireland or Wales. Persons subject to this form of internal exile have no right to know the evidence against them, to cross-examine or confront their accusers, or even to have a formal public hearing.(11)
The European Court of Human Rights ruled the Prevention of Terrorism Act to be in violation of Article Five, Section Three of the European Convention on Human Rights, which requires suspects to be “promptly” brought before a judge.(12) Nevertheless, the British government refuses to abandon its preventive detention policy, and evades the European Court’s ruling by invoking Article 15’s provision for countries to ignore the Convention on Human Rights “in time of war or other emergency threatening the life of the nation.”(13)
One of the most important lessons from Britain is that even a huge dose of restrictions on civil liberties, such as the Prevention of Terrorism Bill, does not long remain “sufficient” in the eyes of the government. At least in regard to civil liberties, the Domino Theory has proven correct, as one traditional Anglo-American freedom after another has fallen under the government’s assertion of the need for still more anti-terrorist powers.
In Northern Ireland the jury has been “suspended” for political violence cases; judges in the Diplock courts hear the cases instead. Confessions are admitted without corroboration. Confessions are extracted through “the five techniques”: wall-standing, hooding, continuous noise, deprivation of food, and deprivation of sleep. Convictions may be based solely on the testimony of “supergrasses” (police informers).(14)
In 1988, the Thatcher government enacted additional laws restricting civil liberties. Television stations were forbidden to broadcast in-person statements by supporters of a legal political party, Sinn Fein.(15) The ban even applied to rebroadcasts of archive films taped many decades ago, such as footage of Eamon de Valera, the first president of Ireland. A confidential British Broadcasting Corporation memo announced the government’s intention to keep journalists from broadcasting any statement by U.S. Senator Edward Kennedy supporting Sinn Fein.(16) The BBC also banned Paul McCartney’s “Give Ireland Back to the Irish,” and a song by another group urging the release from prison of the Guildford Four (discussed below).(17)
A suspect’s decision to remain silent under interrogation may now be used against him in court. Although terrorism in Northern Ireland was the stated basis for the change, the change will also apply in England and Wales. No- one who has seen Great Britain’s slide down the slippery slope can feel confident that repressive measures introduced solely for terrorism will not eventually seep into the ordinary criminal justice system.
Wiretaps do not even need judicial approval.(18)
The Security Service Act of 1989 provides: “No entry on or interference with property shall be unlawful if it is authorized by a warrant issued by the secretary of state.” If committed pursuant to an order from the secretary of state, acts such as theft, damage to property, arson, procuring information for blackmail, and leaving planted evidence are not crimes.(19)
As in America, gun prohibitionists have hitched their wagon to “anti-terrorism,” with little regard for an actual terrorist nexus. Although British laws regarding possession of actual firearms were already quite severe, the Firearms Act of 1982 introduced restrictive licensing for imitation firearms which could be converted to fire live ammunition.(20) The sponsor of the new law against imitation firearms promised that it would help stem “the rising tide of crime and terrorism”–although there had never been a crime or terrorist act committed with a converted imitation weapon.(21) The first time the Prevention of Terrorism Act was used was after another pub bombing, in the English town of Guildford. Four people were arrested, held incommunicado in prison for a week, and coerced into false confessions by administration of drugs and by threats against their families. While the “Guildford Four” were being held, the police used the time to fabricate evidence against them.
Although members of the Irish Republican Army already in prison confessed to the Guildford bombings, the Guildford Four were tried, convicted, and sentenced to life in prison.
Several leading English statesmen, including Roy Jenkins, felt that the defendants had been framed. A campaign to free them continued for fifteen years, until, upon discovery of police notes of fabrication of evidence, the Guildford Four were released from prison.(22)
The Birmingham bombings that had led to the Prevention of Terrorism Act resulted in the conviction of a group of defendants called the “Birmingham Six.” Amnesty International charged that their confessions were extracted under torture. The forensic scientist whose testimony convicted the Birmingham Six later admitted that he lied in court. The Birmingham Six confessed while being held incommunicado by the police; the various confessions were so factually inconsistent that they could not have been true.
(Civil libertarians fear that the Birmingham case is only one of many instances of police obtaining coerced confessions.(23))
The Birmingham Six were also eventually freed.
Britain, fortunately, has no death penalty. In America, where before anyone had even been indicted President Clinton announced that the perpetrators of the Oklahoma City bombing should be executed, the federal death penalty would mean that vindication of persons wrongfully convicted of terrorism might be post-mortem.
To state the obvious, all the legislation has hardly immunized Britain from terrorism. But Britain has, in two decades, eviscerated the magnificent structure of liberty and limited government that took over a millennium to construct. For centuries, “the rights of Englishmen” were proudly held up in contrast to the absolutism of the Continent. Far from being an examplar to the world, the modern “anti-terrorist” United Kingdom has been found culpable of human rights violations under the European Convention on Human Rights more often than any other member of the Council of European States.(24) To a student of Britain’s magnificent history in the story of freedom, it is a pitiful sight to see modern Britons forced to turn to Brussels and the European Court of Human Rights as the last protector of what were formerly the unquestioned rights of Englishmen.
Britain was once the freest nation in the world; today, it is one of the unfreest in Western Europe. As Britain illustrates, no matter how great a country’s tradition of freedom, freedom can be lost in less than a generation if public officials, and the public, allow terrorism to destroy their traditional way of life.
Weakening Restraints on FBI Political Surveillance
Within days after the Oklahoma City bombings, conservative talk show host Rush Limbaugh began casting blame on civil libertarians such as former Ohio senator Howard Metzenbaum who had promoted strict guidelines on FBI surveillance of dissident groups in the United States.(25) Other persons have also called for abolition of the remaining limitations on FBI investigations.
First of all, there is at present no evidence that the FBI wanted to spy on anyone suspected in Oklahoma City bombing, but was prevented from doing so by the current guidelines. Thus, persons demanding the abolition of FBI guidelines are demanding a “solution” for which there is no demonstrated problem.
Second, the FBI guidelines exist for a very good reason. Before the guidelines were implemented, the FBI spied on literally hundreds of thousands of Americans who were doing nothing more than exercising their Constitutional right to question government policies. Victims of these abuses ranged from Dr. Martin Luther King, Jr., to the Ku Klux Klan, to the Congress on Racial Equality and the civil rights movement. The Counter-intelligence Programs (COINTELRPO) invaded the Constitutional rights of American people who simply were expresssing in public what Secretary of Defense Robert McNamara had concluded in private. Far from being confined to a single type of dissident, or to a few years of excess, FBI abuses dated back to the 1940s and were pervasive until brought to light by fifteen months of hearings before Senator Frank Church’s special committee in 1975-76. Altogether, there were 675 FBI operations against civil rights, white supremacist, or anti-war groups, which led to only four convictions.(26)
Even after all the public hearings, and the implementation of guidelines, the FBI continued to abuse the rights of dissident Americans, through a massive surveillance of people in CISPES (Committee in Solidarity with the People of El Salvador) who opposed to President Reagan’s policy in El Salvador in the mid-1980s. The CISPES investigation, justifiably regarded today as shameful, would have been lawful if the anti-terrorism bills current being considered had been law.
The first set of FBI guidelines were implemented by President Ford’s attorney general Edward Levi in 1976. In 1983, the “Levi guidelines” were replaced by President Reagan’s attorney general William French Smith. These “Smith guidelines” were far less restrictive. FBI director William Webster stated that the Smith guidelines “should eliminate any perception that actual or imminent commission of a violent crime is a prerequisite to investigation.” Thus, the recent highly-publicized claim of a former FBI official “you have to wait until you have blood in the streets before the bureau can act” is patent nonsense.(27)
In fact, the Reagan/Smith guidelines, which are still in force, nowhere require the completion of a violent crime. Rather they state that a:
domestic security/terrorism investigation may be initiated when facts for circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States.
Specifically, the guidelines already allow investigations based upon mere words:
When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent from the circumstances or the context in which the statements are made, that there is no prospect for harm.
While the Smith guidelines would prevent infiltration of Second Amendment groups simply because they are sharply critical of government policy, the guidelines do not now prevent infiltration of groups which actually threaten violence. For example, in Virginia, a group of fifteen men who allegedly wanted to resist the federal government managed only three meetings before being arrested for weapons violations as a result of government infiltrator’s secret tape recordings.(28)
Rather than being obliterated, guidelines on FBI domestic surveillance should be brought up to full strength.
A statutory version of the Levi guidelines should be enacted.
Persons who eager to “unleash” the FBI against dissident groups who are not threatening illegal activity might first want to go through the mental exercise of imagining their worst nightmare as President. Liberals might imagine Pat Buchanen or Pat Robertson. Conservatives could imagine Dianne Feinstein or Jesse Jackson. In such a scenario, would we want the FBI free to spy on whomever the President does not like? Under Presidents Nixon, Johnson, and Kennedy, who were far more moderate than Jesse Jackson or Pat Buchanan, the FBI did so, with baleful results.
An official at the Treasury Department, who works closely with the BATF, warned that there is “a tremendous potential for abuse” in administration proposals to loosen controls on the FBI.(29)
It must be remembered that many of America’s greatest organizations were, in their day, radical extremists. The abolitionists were extremists, as were the suffragettes, the civil rights movements, and many of the opponents of the War in Vietnam. If these groups seem vindicated by history, they were bitterly attacked in their day as radical and anti-American.
Finally, before any additional powers are granted to the FBI, it is appropriate to investigate FBI abuses of existing powers, including the events in Waco.(30) At the least, it is well-established that the FBI used a chemical warfare agent which is banned in international warfare, against children indoors, even though Army and manufacturer manuals specifically warn that the agent indoors is flammable, and can severely injure unprotected children. In securing Attorney General Reno’s consent, the FBI falsely told her that the chemical warfare agent was “a mild form of teargas.” The FBI also ignored the advice of its own behavioral experts, and pressured at least one of them to reverse his advice, so as to justify an assault. This fact too was concealed from the Attorney General.
FBI Foreign Jurisdiction
It has been proposed that the FBI’s foreign jurisdiction be expanded. Firstly, the expansion is unnecessary, since the CIA can operate overseas against terrorists. Second, allowing domestic American law enforcement agents to operate on foreign soil against foreign soil against foreign citizens creates a dangerous precedent, and will inevitably lead to demands for reciprocity. Do we really want the Russian secret police, or even the Mexican federales, operating on American soil? The Clinton bill also removes most of the limitations regarding use (including overseas) of American trainers for foreign law enforcement, and removes the restriction against American tax dollars being used to pay the salaries of foreign police.(31) Internationalizing criminal law is even more dangerous to civil liberty than is federalizing it.
Felonizing Support for Peaceful Activities of Foreign Organizations
Presidential Designation of “Terrorist” Groups
The Clinton and Dole bills empower the President to designate “foreign terrorist” organizations which are illegal for Americans to provide any “material support.”(32) Recently, the Clinton administration has retreated from its insistance that the Presidential designation be unreviewable. At the least, the potential for judicial review will reduce the risk of the terrorist designation being used against domestic dissident groups. (Since they would be able to show in court that they were not foreign.) But it should be remembered that American courts have historically been extremely deferential to Presidential foreign policy decisions. If there were even a scintilla of evidence in favor of the President’s designation of a foreign group as “terrorist,” then it is virtually certain that courts would not overturn the designation.
Again, the reader might consider imagining this legislation in the hands of one’s worst political nightmare.
An organization which provides support to the government of Israel or to the Israeli Defense Forces (which are considered “terrorist” in some political circles) could be outlawed, as could (by a different President) a group which provides support to Palestinian refugees.
Current federal law appropriately forbids the providing of material support to any foreign terrorist organization.(33) The law forbids investigations of people for violating this law unless there is some reasonable suspicion that they have violated or may violate the law.
The restriction should of course be retained; targetting people for FBI investigations when there is not a scintilla of suspicion is not only an invitation to harassment of dissidents, it is a waste of law enforcement resources.
One important distinction between the Clinton and Dole bills is that the Dole creates an explicit exception to the “material support” statute: “`Material support’…does not include humanitarian assistance to persons not directly involved in such violations.”(34) Thus, sending a Christmas food package to an I.R.A. or A.N.C. prisoner would constitute material support, but giving money to a fund which assisted the orphaned children of I.R.A. or A.N.C.
members would not be, under the Dole approach.
Under the Clinton bill, however, the donor to the I.R.A. orphanage would be a federal felon, subject to ten years in prison, as would be a person who spent five dollars to attend a speech of a visiting lecturer from the African National Congress.
When pressed about this fact at recent Congressional hearings, a Clinton administration spokesperson acknowledged that minor support for the A.N.C.’s peaceful activities could have been felonized, but that the American people should simply trust the President not to abuse the immense power which President Clinton was requesting.
But as President Lyndon Johnson put it: “You do not examine legislation in light of the benefits it will convey if property administered but, in light of the wrongs it would do and the harms it would cause if improperly administered.”
The “terrorism” bills’ overbreadth is astonishing. The Palestine Liberation Organization is permanently defined as a terrorist organization by the proposal, no matter what its future conduct.(35) Thus, if the P.L.O. should live up the peace treaty that it signed with Israel, President Clinton would be guilty of providing “material support” to a terrorist organization should he invite Yassir Arafat to the White House and give him a free meal and a night’s lodging.
Theoretically, a license can be procured allowing humanitarian contributions to the blacklisted group. The licensing procedure is, however, very difficult to comply with. Not only does recipient group have to open its books to the Treasury Department, so does the donor. In other words, if a person wants to make a $50 contribution to buy clothes for Palestinian orphans, the person must make his financial records open for inspection, and be able to show “the source of all funds it receives, expenses it incurs, and disbursements it makes.”(36) There is no limitation that the complete accounting of receipt, expenses, and disbursements be limited to the charitable donation. Virtually no-one in the United States keeps such detailed records. Knowing that a charitable donation to a politically blacklisted group would expose the donor to a nightmare audit, few donors would be courageous or foolish enough to give anyway.
In addition to criminal penalties of up to ten years in prison, civil fines of $50,000 per offense may be imposed, and in civil prosecutions, the government may, upon approval of the court, introduce secret, classified evidence which remains hidden from the defendant.(37) (The Clinton and Dole bills grant similar authority to use secret evidence in proceedings under the International Emergency Economic Powers Act, which gives the President unilateral authority to regulate or prohibit all foreign exchange transactions, all imports and exports of securities and currency and foreign currency transactions, and all banking transactions involving foreigners.(38))
The Constitutional View
The Constitution mandates that if a person is to be punished for association with a group which has unlawful objectives, the government must prove that the individual specifically intended to further the unlawful objectives.(39) What the Clinton/Dole bills propose is a return to practices which the Supreme Court outlawed over half a century ago.
Then, the Immigration and Naturalization Service attempted to deport labor organizer Harry Bridges because of his affiliation with the Communist party. Bridges had supported only lawful Communist activities, rather than the party’s unlawful ends. The INS argued that if an organization had unlawful purposes, the fact that a supporter had supported only lawful purposes was irrelevant. The Supreme Court disagreed, and dismissed the case.(40)
More recently, the Court declared unconstitutional a law that was “a blanket prohibition of association with a group having both legal and illegal aims.” Unless there was proof that the defendant specifically intended to support the group’s illegal aims, the prohibition was a violation of “the cherished freedom of association protected by the First Amendment.”(41)
Defining Everything as “Terrorism”
Current federal law already provides a comprehensive, realistic definition of “terrorist activity.”(42) Some proposals define virtually any crime as “terrorism.” For example, the Clinton and Dole “terrorism” bills define as “terrorism” virtually every violent or property crime, whether or not related to actual terrrorism. The bills impose a prison terms of up to twenty-five years (for property damage, more for violent crimes) for “terrorist” offenses which are defined as follows: any assault with a dangerous weapon, assault causing serious bodily injury, or any killing, kidnapping, or maiming, OR any unlawful destruction of property.(43) Snapping someone’s pencil, breaking someone’s arm in a bar fight, threatening someone with a knife, or burning down an outhouse would all be considered “terrorist” offenses. Any attempt to perpetrate any of these terrorist crimes would be subject to the same punishment as completed offense.
Even a threat to commit the offense (i.e. “One of these days, I’m going to snap your pencil.”) is a felony subject to ten years in federal prison.(44) Again, the extra federal power granted by the legislation is superfluous to genuine anti-terrorism. It is already a serious federal felony to make a real terrorist threat, as by threatening to set off a bomb, or to assassinate the President.(45)
In order for the offense to be considered “terrorism,” all that would be necessary would be jurisdictional predicate that would cover almost every crime. The jurisdictional predicate requires one of any of the following: the crime “affects commerce in any way” (not necessarily interstate commerce); the criminal used “any facility used in any manner in commerce”; the victim was “traveling in commerce” (again, not necessarily interstate); the victim was a federal employee, or the property damaged was federal; the victim was not an American national; or any of the offenders “travels in commerce.”(46) If anyone involved in the crime meets the jurisdictional predicate, then jurisdiction is invoked for the entire crime.(47)
Finally, in order for a prosecution to take place, the Attorney General must certify in writing that the offense “transcended national boundaries” and was intended to intimidate a foreign government or “a civilian population, including any segment thereof.”(48) There is no provision for review of whether the Attorney General’s certification was even remotely accurate. Nor is there any requirement that there be an actual international border crossing.
Just because the law allows it, the federal government probably will not prosecute every Canadian tourist who snaps a policeman’s pencil or everyone who scratches anti-war graffiti on post office tables. The proponents of these bills may expect that the essentially limitless discretion granted to the federal government will not be abused. But a fundamental principle of American law has always been that the law should control the government; citizens should not be at the mercy of the good judgement of government officials. As the Supreme Court put it, “It could certainly be dangerous if the legislature could set a net wide enough to trap all possible offenders, and leave it to the courts to step inside and say who could rightfully be detained, and who should be set a large.”(49)
The justification for federalizing all of the criminal law is that such federalization is necessary to make sure that every possible terrorist crime is covered. For example, it is asserted that the bombing of a Jewish hospital in, for example, St. Louis, might not be covered by current federal law. In fact, the federal arson statute has successfully been applied to the burning of a trailer that was hooked up to a power system which was part of the interstate electricity grid.(50) Thus, the fact that the hospital drew power from the same electrical grid would justify application of the current federal arson law, without the need for a new statute. Even if it is possible to imagine some bizarre hypothetical crime that would not be covered by the (very expansive) interpretation of current federal criminal statutes, every conceivable terrorist crime is subject to severe punishment under current state criminal laws.
The dangers posed by the hidden federalization of the entire criminal law (all the way down to petty vandalism) become all the greater when coupled with the bill’s other provisions to make the overbroad federal RICO,(51) money laundering,(52) and wiretapping laws(53) applicable to “terrorist” offenses and to authorize use of the military in domestic law enforcement for “terrorism.”(54) No bail is allowed even if it is uncontroverted that the accused will not flee and will pose no danger to anyone.(55)
Likewise, mandatory prison sentences, with no possibility of probation, are required for “terrorist” crimes, no matter what the circumstances.(56)
Having used state law definitions to define petty property crimes as “terrorism,” the bills then forbid defendants from invoking state constitutional law protections of the state where the alleged offense took place.(57)
Turning every state and local petty property crime (or even a local violent crime) into a federal felony may be unconstitutional, as the Supreme Court recently ruled in the Lopez “gun-free-school-zones” case. Putting aside questions of Constitutionality, it is inappropriate that the draconian federalization of state crimes be pushed through Congress under the mask of anti-terrorism.
Resisting Foreign Dictatorships
Solicitude for foreign governments should not blind us to the fact that most governments in the world are dictatorships. Under the principles on which America is based, governments without the consent of the governed have no legitimacy, and it is the right of the people of that nation to overthrow the dictatorship.
Yet the Clinton and Dole bills define as “terrorism” any act which plans the destruction of government property in foreign nation with which the United States is “at peace.”(58) Thus, if Chinese refugees living in the United States planned a jailbreak to liberate political prisoners in China, they would be guilty of “terrorism.” If Americans in 1940 had plotted the destruction of railways leading to Nazi concentration camps, they too would have been guilty of “terrorism.” And so would the countless American Jews who smuggled firearms to the Jewish resistance movement in Palestine in the 1940s, making possible the eventual establishment of the state of Israel. Had such a “terrorism” law been universal in 1776, the Dutch, French, and other private citizens who provided material assistance to the American Revolution (even though their governments were at peace with the British Empire) would have been “terrorists” too. It ill becomes a nation which was born in violent revolution with foreign assistance to felonize the very types of charity which allowed our own nation to become free. Resistance to dictatorships and empires is not terrorism.
Various proposals have been offered to expand dramatically the scope of wiretapping. For example, the Clinton bill defines almost all violent and property crime (down to petty offenses below misdemeanors) as “terrorism” and also allow wiretaps for “terrorism” investigations.(59)
Other proposals would allow wiretaps for all federal felonies, rather than for the special subet of felonies for which wiretaps have been determined to be especially necessary. Notably, wiretaps are already available for the fundamental terrorist offenses: arson and homicide. Authorizing wiretaps for evasion of federal vitamin regulations, gun registration requirements, or wetlands regulations is hardly a serious contribution to antiterrorism, but amounts to a bait-and-switch on the American people.
Currently, FBI wiretapping, bugging, and secret break- ins of the property of American groups is allowed after approval from a seven-member federal court which meets in secret.(60) Of the 7,554 applications which the FBI has submitted in since 1978, 7,553 have been approved.(61)
Making the request for vast new wiretap powers all the more unconvincing is how poorly wiretap powers have been used in the past. Terrorists are, of course, already subject to being wiretapped. Yet as federal wiretaps set new record highs every year, wiretaps are used almost exclusively for gambling, racketeering, and drugs. The last known wiretap for a bombing investigation was in 1998. Of the 976 federal electronic eavesdropping applications in 1993, not a single one was for arson, explosives, or firearms, let alone terrorism. From 1983 to 1993, of the 8,800 applications for eavesdropping, only 16 were for arson, explosives, or firearms.(62) In short, requests for vast new wiretapping powers because of terrorism are akin to a carpenter asking for a pile driver to hammer a nail, while a hammer lies nearby, unused.
Even more disturbing than proposals to expand the jurisdictional base for wiretaps are efforts to remove legal controls on wiretaps. For example, wiretaps are authorized for the interception of particular speakers on particular phone lines. If the interception target keeps switching telephones (as by using a variety of pay phones), the government may ask the court for a “roving wiretap,” authorizing interception of any phone line the target is using. Yet while roving wiretaps are currently available when the government shows the court a need, the Clinton and Dole bills allow roving wiretaps for “terrorism” without court order.(63) (Again, remember that both bills define “terrorism” as almost all violent or property crime.)
The Foreign Intelligence Surveillance Act (FISA) provides procedures for authorizing wiretaps in various cases. These procedures have worked in the most serious foreign espionage cases.(64) Yet the Clinton and Dole bills would authorize use of evidence gathered in violation of FISA in certain deportation proceedings.
Warrantless Data Gathering
Proposals have also been offered to require credit card companies, financial reporting services, hotels, airlines, and bus companies to turn over customer information whenever demanded by the federal government.(65) Document subpoenas are currently available whenever the government wishes to coerce a company into disclosing private customer information. Thus, the proposals do not increase the type of private information that the government can obtain; the proposals simply allow the government to obtain the information even when the government cannot show a court that there is probable cause to believe that the documents contain evidence of illegal activity.(66)
Similar analysis may be applied to proposals to increase the use of pen registers (which record phone numbers called, but do not record conversations, and thus do not require a warrant). If a phone company has a high enough regard for its customers’ privacy so as to not allow pen registers to be used without any controls, the government may obtain a court order to place a pen register. Business respect for customer privacy ought to be encouraged, not outlawed.
Curtailing First Amendment Rights of Computer Users
For some government agencies, the Oklahoma City tragedy has become a vehicle for enactment of “wish list” legislation that has nothing to do with Oklahoma City, but which it is apparently hoped the “do something” imperative of the moment will not examine carefully.
One prominent example is legislation to drastically curtail the right of habeas corpus.(67) Although Supreme Court decisions in recent years have already sharply limited habeas corpus,(68) prosecutors’ lobbies want to go even further. Two obvious points should be made: First, habeas corpus has nothing to do with apprehending criminals; by definition, anyone who files a habeas corpus petition is already in prison. Second, habeas corpus has nothing to do with Oklahoma City in particular, or terrorism in general.
A second example, of piggybacking irrelevant legislation designed to reduce civil liberties are current FBI efforts to outlaw computer privacy.
If a person writes a letter to another person, he can write the letter in a secret code. If the government intercepts the letter, and cannot figure out the secret code, the government is out of luck. These basic First Amendment principles have never been questioned.
But, if instead of writing the letter with pen and paper, the letter is written electronically, and mailed over a computer network rather than postal mail, do privacy interests suddenly vanish? According to FBI director Louis Freeh, the answer is apparently “yes.”
Testifying before the Senate Judiciary Committee about Oklahoma City, director Freeh complained that people can communicate over the internet “in encrypted conversations for which we have no available means to read and understand unless that encryption problem is dealt with immediately.”(69) “That encryption problem” (i.e. people being able to communicate privately) could only be solved by outlawing high quality encryption software like Pretty Good Privacy”.
First of all, shareware versions of Pretty Good Privacy are ubiquitous throughout American computer networks. The cat cannot be put back in the bag. More fundamentally, the potential that a criminal, including a terrorist, might misuse private communications is no reason to abolish private communications per se. After all, people whose homes are lawfully bugged can communicate privately by writing with an Etch-a-Sketch”.(70) That is no reason to outlaw Etch- a-Sketch.
Although Mr. Freeh apparently wants to outlaw encryption entirely, the Clinton administration has been proposing the “Clipper Chip.” The federal government has begun requiring that all vendors supplying phones to the federal government include the “Clipper” chip. Using the federal government’s enormous purchasing clout, the Clinton administration is attempting to make the Clipper Chip into a de facto national standard.(71)
The clipper chip provides a low level of privacy protection against casual snoopers. But some computer scientists have already announced that the chip can defeated. Moreover, the “key”–which allows the private phone conversation, computer file, or electronic mail to be opened up by unauthorized third parties–will be held by the federal government.
The federal government promises that it will keep the key carefully guarded, and only use the key to snoop when absolutely necessary. This is the same federal government that promised that social security numbers would only be used to administer the social security system, and that the Internal Revenue Service would never be used for political purposes.
Proposals for the federal government’s acquisition of a key to everyone’s electronic data, which the government promises never to misuse, might be compared to the federal government’s proposing to acquire a key to everyone’s home.
Currently, people can buy door locks and other security devices that are of such high quality that covert entry by the government is impossible; the government might be able to break the door down, but the government would not be able to enter discretely, place an electronic surveillance device, and then leave. Thus, high-quality locks can defeat a lawful government attempt to bug someone’s home, just as high-quality encryption can defeat a lawful government attempt to read a person’s electronic correspondence or data.
Similarly, it is legal for the government to search through somebody’s garbage without a warrant; but there is nothing wrong with privacy-conscious people and businesses using paper shredders to defeat any potential garbage snooping. Even if high-quality shredders make it impossible for documents to be pieced back together, such shredders should not be illegal.
Likewise, while wiretaps or government surveillance of computer communications may be legal, there should be no obligation of individuals or businesses to make wiretapping easy. Simply put, Americans should not be required to live their lives in a manner so that the government can spy on them when necessary.
Thus, although proposals to outlaw or emasculate computer privacy are sometimes defended as maintaining the status quo (easy government wiretaps), the true status quo in America is that manufacturers and consumers have never been required to buy products which are custom-designed to faciliate government snooping.
The point is no less valid for electronic keys than it is for front-door keys. The only reason that electronic privacy invasions are even discussed (whereas their counterparts for “old-fashioned” privacy invasions are too absurd to even be contemplated), is the tendency of new technologies to be more highly restricted than old technologies. For example, the Supreme Court in the 1920s began allowing searches of drivers and automobiles that would never have been allowed for persons riding horses.
But the better Supreme Court decisions recognize that the Constitution defines a relationship between individuals and the government that is applied to every new technology. For example, in United States v. Katz, the Court applied the privacy principle underlying the Fourth Amendment to prohibit warrantless eavesdropping on telephone calls made from a public phone booth– even though telephones had not been invented at the time of the Fourth Amendment.(72) Likewise, the principle underlying freedom of the press– that an unfettered press is an important check on secretive and abusive governments–remains the same whether a publisher uses a Franklin press to produce a hundred copies of a pamphlet, or laser printers to produce a hundred thousand. Privacy rights for mail remain the same whether the letter is written with a quill pen and a paper encryption “wheel,” or with a computer and Pretty Good Privacy.
Efforts to limit electronic privacy will harm not just the First Amendment, but also American commerce. Genuinely secure public-key encryption (like Pretty Good Privacy) gives users the safety and convenience of electronic files plus the security features of paper envelopes and signatures. A good encryption program can authenticate the creator of a particular electronic document–just as a written signature authenticates (more or less) the creator of a particular paper document.
Public-key encryption can greatly reduce the need for paper. With secure public-key encryption, businesses could distribute catalogs, take orders, pay with digital cash, and enforce contracts with veriable signatures–all without paper.
Conversely the Clinton administration’s weak privacy protection (giving the federal government the ability to spy everywhere) means that confidential business secrets will be easily stolen by business competitors who can bribe local or federal law enforcement officials to divulge the “secret” codes for breaking into private conversations and files, or who can hack the clipper chip.
The New Star Chamber
Although the United States has suffered exactly one alien terrorist attack in the last eleven years, special harsh rules for aliens are at the top of the “antiterrorism” agenda. The most ominous proposals are those that allow secret evidence for deportation cases in which the government asserts that secrecy is necessary to the national security.(73) Georgetown University Law Professor David Cole calls the secret court the new “Star Chamber,” since its powers resemble those of the inquisitorial court which the British monarchy, in violation of the common law, used to terrorize dissident subjects. Star Chamber was one of the most hated abuses of the British government.
Modern Star Chamber proceedings are to be before a special court (one of five select federal district judges)(74), after a an ex parte, in camera showing that normal procedures would “pose a risk to the national security of the United States.”(75) Based upon further ex parte, in camera motions, evidence which the government does not which to disclose may be withheld from the defendant, who will instead be provided a general summary of what the evidence purports to prove. In other words, secret evidence may be used.(76) Of course any of the “showings” that the government makes in camera and ex parte may be based on allegations regarding the unreviewable claims of a secret informant.
Wiretap evidence is usable even if it was illegally obtained.(77) Normal procedural rules allowing for disclosure of circumstances relating to illegally obtained evidence are abolished.(78)
Legal aliens do not, of course, have the full scope of Constitutional rights guaranteed to American citizens; for example, they cannot exercise rights associated with citizenship, such as voting, or serving on a jury. But it is well-settled that legal aliens enjoy the same right to freedom of speech as do citizens. Likewise, legal aliens have always been accorded the same due process protections in criminal cases. After all, the Fifth Amendment’s guarantee of Due Process protects “all persons,” not just “all citizens.”(79)
Procedures like those proposed in the Clinton and Dole bills have already been found unconstitutional. As the District of Columbia Court of Appeals, put it:
Rafeedie–like Joseph K. in The Trial–can prevail before the [INS] Regional Commmissioner only if he can rebut the undisclosed evidence against him, i.e., prove that he is not a terrorist regardless of what might be implied by the government’s confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.(80)
The argument for allowing secret evidence in deportation proceedings is that otherwise the identity or operational mode of a confidential informant might be jeopardized. First of all, the very purpose of the Constitution’s Confrontation Clause is to prevent people’s lives from being destroyed by the type of secret accusations which had characterized the European justice systems.
Moreover, the argument against endangering the secrecy of confidential accusers in deportation cases proves too much. The very same argument applies in every other case, including criminal violence or drug sales cases. Obeying the Confrontation Clause in those cases may likewise impede the short-term interests of law enforcement. But the Constitution has conclusively determined that a criminal justice system without a right of confrontation poses a far greater long-term risk to public safety than does requiring the government to disclose the reason why it wants to imprison, execute, or deport someone.
Simply put, confidential informants often lie.
Informants are rarely good citizens who come forward to help prevent a crime. Rather, informants are criminals who have been caught, and have turned informant in order to protect themselves from prosecution; informants have every reason to lie and falsely accuse people.(81)
Confidential informants who are not professional criminals may have other reasons for lying. The type of miscarriage of justice that can occur based on confidential informants was illustated in 1950 case, in which the Supreme Court held that secret evidence could be used to prevent an alien from entering the United States.(82) (She was married to an American.) When the alien was granted a hearing, it was discovered that the confidential informant was her husband’s angry ex-girlfriend.
Some persons who would oppose Star Chamber proceedings for criminal trials might approve of such procedures in deportation hearings since deportation is, under most circumstances, a less severe sanction than prison. Yet if the alien cannot find a country that wants to take him (or if the State Department can quietly convince other countries not to take him), then the alien may be imprisoned for the rest of his life in the United States, at the sole discretion of the Attorney General, without even the right to ask for a writ of habeas corpus based on governmental violation of statutes.(83)
Finally, some persons may accept Star Chamber for legal resident aliens under the presumption that such procedures would never be used against American citizens. Yet if there is anything the experience of Great Britain proves, it is that special, “emergency” measures implementented in a limited jurisdiction (such as Northern Ireland) soon spread throughout the nation. Cancers always start small. If one international terrorist incident in eleven years is a sufficient interest to justify a Star Chamber for certain terrorism suspects, then it is hard to resist the logic that crimes which actually are widespread (such as homicide, rape, or drug trafficking) should be entitled to their own Star Chamber.
One of the reasons that many people are so frightened of the federal government is how it already uses informants to attempt to infiltrate suspicious organizations. One of the most notorious cases which helped create the militia movement was started by the attempt to creat an informant.
Randy Weaver was a white separatist who lived with his family in a remote cabin in northern Idaho. There was no indication that he had ever advocated or participated in illegal violence. When he was approached by federal agents who wanted him to infiltrate violent white supremacist groups and serve as an informer, he refused. He was later entrapped (a jury later found) by repeated pestering from undercover agents into selling undercover BATF agents two shotguns whose barrels had been shortened (at the request of the undercover agents) to a fraction of an inch below the 18″ legal limit. Weaver failed to appear for a court hearing resulting from the illegal firearms sale; as it later turned out, the order to appear which had been mailed to him gave an incorrect date for the hearing. A fugitive arrest warrant was issued for Weaver.
United States Marshals showed up one day in August 1992. The Weavers’ three dogs (two collies and a labrador) began barking, and Randy Weaver, his friend Kevin Harris, and Weaver’ fourteen-year-old son Sammy grabbed their guns to run and investigate.
The Marshals, wearing camouflage and carrying silenced machine guns, did not identify themselves or their purpose, but they did shoot one of the dogs. Sammy Weaver returned fire, and was promptly shot by a Marshal. Sammy turned and fled, with his nearly severed arm flopping as he ran. Sammy was promptly shot in the back. Nearby, Kevin Harris concluded that if he fled, he too would be shot; Harris fired his rifle in the direction of the marshal who had shot Sammy; the bullet killed the marshal who had shot Sammy Weaver.
Randy Weaver had only heard the shooting, but had not seen what had happened. “Come on home, Sam. Come home,” he yelled over and over. At last, Sammy called “I’m coming, Dad.” Those were apparently the last words Sammy Weaver said before he died.
Harris’s shot had disordered the Marshals, and Weaver and Harris used the opportunity to retreat to their cabin.
Later that day, Randy Weaver and his wife Vicki picked up Sammy’s dead body and carried it to a building near the cabin, where they prepared their son’s body for burial.
Over 300 government agents, led by the FBI “Hostage Rescue Team” descended on Ruby Ridge, Idaho, where Weaver’s two-story cabin was located. Commanding the FBI at Ruby Ridge was Richard M. Rogers, who would later serve as a field commander at Waco.(84)
The FBI rules of engagement allow use of deadly force only when necessary to protect an innocent person from imminent peril. But on the plane out to Idaho, Rogers wrote new rules of engagement for Ruby Ridge. The new rules allowed FBI snipers to shoot any adult who was armed. Since virtually everyone besieged in Idaho went outside armed (in full compliance with the laws of Idaho, and of most other states, because the armed people were on their own property) everyone was a target outside the cabin.
At Weaver’s trial in 1993, HRT Director Rick Rogers was unable to cite any authority allowing the FBI, in violation of state law, to shoot people who were posing no threat to anyone. (A provision in the 1994 federal crime bill, removed during the bill’s final movement through Congress, would have immunized federal agents from state criminal prosecution for crimes committed while on the job.)
As at Waco, a siege ensued, with the “Hostage Rescue Team” surrounding the residence of people who, far from being held hostage, simply wanted to be left alone.
At about six p.m. the next day, sixteen-year-old Sarah Weaver, her father Randy, and Kevin Harris walked out to the nearby shed to pay their last respects to Sammy. They were carrying firearms. Standing by the open door was Mrs. Vicki Weaver, holding her 10 month old daughter Elisheba.
FBI sniper Lon T. Horiuchi said that he could hit a quarter at 200 yards. Horiuchi fired, and hit Randy Weaver in the shoulder. Horiuchi later testified that Weaver was shot to keep Weaver from shooting at a helicopter overhead.
At the subsequent trial, Associate Marshal Service Director Wayne Smith testified that no helicopter was over the Weaver cabin that day, and the judge threw out the charge that Weaver had aimed a firearm at a helicopter. Sarah Weaver, Randy Weaver, and Kevin Harris fled back towards the cabin.
Sniper Horiuchi fired again, this time at a person he said he thought was Kevin Harris. (Although Harris was not even alleged to have raised any gun at any helicopter.) Horiuchi later testified that he could not identify his target clearly because he could not see through the curtains of the door. After Horiuchi had testified, the government (illegally late) turned over Horiuchi’s official report of the shooting; the drawing showed two figures standing in an open door.(85)
The FBI sniper’s .308 slug crashed into Vicki Weaver’s head with such force that skull bone fragments ricocheted into Harris, as the slug exited her body and entered his.(86) Vicki Weaver’s body fell to its knees, and her head came to rest on the floor, like a person at prayer. Randy Weaver took baby Elisheba from her arms, and lifted his wife’s head; half her face had been blown away. Her dead body was laid out on the cabin floor, and covered with a blanket.
An FBI psychological profile, prepared before the attack, called Vicki Weaver the “dominant member” of the family, thus implying that if she were “neutralized” everyone else might surrender.(87)
During the next week, “the FBI used the microphones to taunt the family. `Good Morning Mrs. Weaver. We had pancakes for breakfast. What did you have?’ asked the agents in at least one exchange. Weaver’s daughter Sarah, 16, said the baby, Elisheba, often was crying for its mother’s milk when the FBI’s messages were heard.”(88)
Bo Gritz, a highly-decorated American soldier in Vietnam, who is now a talk-show host and a right€wing political figure, offered to try to negotiate with Weaver.
Eight days after Vicki Weaver was shot, Gritz succeeded in convincing Weaver to surrender based on a promise that Weaver could meet with famed criminal defense attorney Gerry Spence.
Spence agreed to take the case pro bono, and in April 1993, Kevin Harris went on trial for murder, with Randy Weaver charged with conspiracy to commit murder.(89) As with the Branch Davidians, the government attempted to portray Weaver as a political and religious zealot who prophesied and then sought to create a holy war with federal agents, even though his clear goal had been to avoid government agents.(90) Weaver and Harris claimed self- defense, and that the government unjustifiably fired first.
With no defense evidence even introduced, the jury acquitted the accused of all charges of criminal violence, and the court fined the federal government for falsifying evidence, for withholding evidence, and for lying.(91) Weaver was convicted only of his failure to appear for the court hearing growing out of the BATF sting.(92)
The Justice Department conducted an internal review of the incident which strongly condemned governmental actions, and recommended criminal prosecution. The report has never been released the public. Its recommendations were over- ruled by high-ranking Justice Department officials.
Instead, trivial sanctions were imposed. For example, Larry Potts, the supervisor of the siege, who had approved the “shoot-to-kill” rules of engagement was given a censure, the same punishment inflicted on FBI Director Louis Freeh for losing his portable phone. Potts was then promoted to the second-ranking position at the FBI. The new training center for US Marhsals in New Orleans was named the “William F.
Degan” center, in honor of the marshal who had killed Sammy Weaver.
If President insists that wishes to convince the tens of thousands of Americans who belong to militia, the millions who support the patriot movement, and the 39 percent who told the Gallup poll that they think the federal government is an immediate threat to their liberty, then the President should stop the government from acting like a terrorist organization, and then slapping itself on the wrist. Rather than encouraging more use of informants, Congress should create a special prosecutor to investigate homicides perpetrated by the federal government, starting with the Weaver case.
Preserve Our National Commitment to Freedom of Speech Many people, particularly people who abhor “right-wing” political viewpoints, have asserted that talk show hosts, commentators, and others who speak strongly about the need to restrain the federal government are indirectly responsible for the events in Oklahoma City. Such claims are disgraceful.
When President Kennedy was assassinated in Dallas in 1963, some people attempted to link the assassination to the climate of “hat