ON THE CONSTITUTIONALITY OF VARIOUS PROVISIONS OF THE PROPOSED
ANTI-TERRORISM ACT OF 2001

SENATE JUDICIARY COMMITTEE

October 3, 2001

Mr. Chairman. I am the Dean of the Law School of The Catholic University of America in Washington, D.C. As the former head of the Office of Legal Counsel in the U.S. Department of Justice in the Reagan administration, it was my duty to handle legal issues pertaining to national security and foreign intelligence, as well as to advise the President on constitutional questions brought under virtually any part of the U.S. Code.

The events of September 11 remain ever-present in the minds of American citizens. For thousands of families, a husband or wife or child will never return home because of what happened that day. The diabolical events of that morning will be forever etched in our consciousness. And yet, along with those mental pictures, it is important to grasp fully what happened: it wasn't a political rally; it wasn't a nonviolent speech protest; it wasn't an example of urban street crime; and it wasn't even an attack by another sovereign state or nation, it was the deliberate murder of innocent men and women, not for high political purpose or cause – or even a base one – but simply the random manifestation of hate intended to spread panic and fracture the civil order and continuation of American society.

But as grievously wounded as we may be, American society and its principled understanding of freedom with responsibility does not fracture or panic that easily, but it does expect that justice will be done. It earnestly desires, along with our President, to see those who so mercilessly took sacred human life to be held to account – not in a local criminal court, but by the able men and women of the military and our law enforcement communities, working together, either to eliminate on a field of battle these "enemies of mankind," as Blackstone called them, or to apprehend and punish them – presumably before the bar of a properly convened military tribunal like those employed against Nazi saboteurs in World War II.

In considering this legislation it is useful to remember that our founder's conception of freedom was not a freedom to do anything or associate for any purpose, but to do those things which do not harm others and which, it was hoped, would advance the common good. Freedom separated from this truth is not freedom at all, but license. Congress can no longer afford, if it ever could, to confuse freedom and license – because doing so licenses terrorism, not freedom. Those opposing the Anti-Terrorism Act of 2001 submitted to you by the Attorney General seem to have both a more radical view of freedom and a less sober view of the threats we face. For example, before the 1996 Anti-terrorism Act was passed, some of the opponents to this legislation claimed that terrorist threat was not particularly imminent and that existing investigative and protective authorities were adequate. "The U.S. has not been a fertile breeding ground for terrorism," opined Mr. James X. Dempsey & Professor David Cole in Terrorism & The Constitution 147 (1999), and further that "relatively modest, overt, non-discriminatory measures, such as metal detectors at airports protect airlines from attack." Dempsey & Cole, Terrorism & The Constitution at 153 (June 1999)]. Today, these same objectors say the existing law is just fine.

With due respect, such complacency hides a basic confusion or under-appreciation for the war against terrorism that now must be fought. The objectors think of the mass destruction of the World Trade Center and the Pentagon as the equivalent of "[m]urder, kidnapping or bank robbery." [Dempsey & Cole, supra at 159]. They think the point is a criminal trial; it is not – it is the elimination of terrorism.

The primary authority for dealing with terrorist threat resides both in the President as commander in chief, and this Congress, as the architect of various specific legal authorities, under the Constitution, to meet that threat. The President has courageously told the nations of the world that all are either for the United States in this, or with the terrorists. There is no middle ground. Similarly, the Congress by joint resolution has given President Bush authority not only to act against those wealthy and bloody hands that orchestrated the events of September 11, but all cooperators in those cowardly actions or "any future act" of international terrorism.

The President has not been rash in the use of our military might, even as he has made unmistakably plain that the "hour is coming when America will act." However, for that hour to come; for the proportionate application of our military might to become successfully manifest, this Congress must equip our law enforcement and intelligence communities with adequate and constitutional legal authority to address a war crime on a scale that previously was not seen in this generation, or seen ever, in peace time.

The Attorney General has put before you, in the form of the Anti-Terrorism Act of 2001 just such a piece of legislation. While it is still in draft form, I believe the provisions discussed herein, are fully constitutional and merit your approval. In drafting this legislative proposal, the Attorney General has given due regard to the necessary balance between the civil liberties enjoyed by our citizens under the Constitution and the law enforcement authority needed to both meet the employ of modern and global communication in terrorist plotting and the terrorist support activities of those non-citizens who come to our shores, as our guests, but who nevertheless wish to kill us.

While I suppose it is possible for some of our objecting witnesses to be right about their constitutional questions even as their appraisal of terrorist threat was so astoundingly wrong, it is only fair for this body to understand – in seeking to balance security with freedom – that the witnesses opposing the legislation do so on constitutional policy, not constitutional law, grounds. And it is further important to know that the policy of the opposing witnesses is framed by the belief that, to quote them, "there are a number of reasons to be skeptical about the claim that terrorists or their weapons have changed qualitatively. . . ." [Dempsey & Cole, supra at 152]. Regrettably, that cannot no longer be said to a stunned world community that has never before witnessed the inhumanity of using hundreds of innocents in a commercial airplane to kill thousands of other innocent noncombatants.

As you know, the legislation before you has two fundamental purposes: to subject terrorism to the same rigorous treatment as organized crime and the drug trade and to supply up-to-date law enforcement capabilities to address the technology of the day which no longer observes some of the lines previously drawn in statute. The proposed legislation is complex and proceeds in 5 parts or titles. I will not address each title or section, but will highlight some of importance and others to rebut arguments raising putative constitutional shortcomings.

In Title I dealing with intelligence gathering, section 101 is a needed change reflecting that in gathering intelligence, telecommunications is a national enterprise, not a local one, and it now includes the Internet as well as various telephonic services. Under court supervision, this section authorizes the installation of devices (pen registers/trap and trace) anywhere in the United States. Terrorists do not stop at state lines, and the ability of law enforcement to obtain such information from any person or entity supplying wire or electronic communications service is a practical necessity. Section 101 uses technologically neutral language (‘routing, addressing") make it clear that it applies to all technology that is presently known, including the Internet. Basically, this section authorizes the disclosure of telephone numbers dialed or their equivalent. It poses no constitutional issue, as courts have held that pen register/trap and trace information is not subject to constitutional protection, Smith v. Maryland, 442 U.S. 735 (1979) and some case law has already been extending existing authority to email. Beyond this, the legislative proposal is explicit that the content of the communications are not included.

Section 103 of the legislation facilitates the disclosure of so-called Title III wiretap information to the intelligence community. This directly implements numerous commission recommendations that law enforcement and intelligence personnel eliminate artificial lines separating them in the context of a terrorism investigation. Presently, 18 U.S.C. 2517(1) allows any wiretap information to be shared if it assists another criminal investigation. The universe of individuals authorized to receive wiretap information under the proposal is larger than that, but is rationally limited to law enforcement, intelligence, national security, national defense, protective, and immigration personnel or the President or Vice-President. I understand that the House version further adds that the sharing is appropriate only when it relates to foreign intelligence information. This germaneness standard is workable, and the authority requested presents no constitutional issue. There is no basis to fetter this sharing of information upon court order since that would in essence make sharing of information less possible in a terrorism investigation than in common criminal practice today where federal prosecutors share this information with state law enforcement officers investigating local crime.

A good deal of debate has focused upon section 153 and the expansion of the Foreign Intelligence Surveillance Act (FISA) 50 U.S.C. sections 1800-1863 to circumstances that are not primarily intelligence related, but have foreign intelligence merely as one of its purposes. The Attorney General posits that this will eliminate the need to constantly re-evaluate whether the intelligence purposes of an investigation outweigh the criminal objectives.

While the distinction between primary purpose and one purpose mirrors lower court case law designed to insure the observance of Fourth Amendment protections in criminal cases, the distinction makes little sense where both intelligence and law enforcement communities must work side by side in the war on terrorism. It is also a distinction that has never been formally made by the Supreme Court. Gathering intelligence without meeting the stringent probable cause and notice elements of a traditional Title III criminal investigation are essential to tracking down terrorist activity. The real distinction should not be between intelligence and criminal purposes, but whether the surveillance or search is being effectively directed at terrorist activity, especially that from a foreign source, without having to decide whether at any given time one purpose or the other predominates.

In my judgment, this greater flexibility does not present a constitutional violation.

First, a little bit of background. Before FISA, wiretapping for national security purposes was essentially unregulated. In 1972, the Supreme Court, in United States v. United
States District Court, 407 U.S. 297 (1972) – the so-called Keith opinion – ruled that wiretaps conducted for purposes of domestic security violated the Fourth Amendment unless a warrant had been obtained from a court before the surveillance was conducted. However, the Court declined to hold that this warrant requirement also applied to surveillance of foreign governments or their agents.

Congress established procedures for law-enforcement wiretapping in 1968, including a requirement of probable cause that a crime had been or would soon be committed. This statute created significant protections against wiretapping in most situations, but it again specifically exempted national security searches from its scope. Congress provided that "nothing in the Act limited the President's existing constitutional power to obtain foreign intelligence or protect national security." 18 U.S.C. 2511(3) (1968).

The Carter administration following congressional study sought the enactment of FISA while nevertheless contending, as most presidents have, that the Executive has inherent power to conduct warrantless electronic wiretapping for national security purposes. Certainly, in this regard, it can be tenably argued that the President's Article II responsibilities may be sufficient in themselves in an emergency of the type we presently face. Aside from this inherent Executive claim, emergency statutory authority is expressly confirmed in FISA insofar as the Attorney General may authorize immediate surveillance without court order. 18 U.S.C. 1802(a)(1). The Act also authorizes the conducting of electronic surveillance without a warrant when the Attorney General certifies in writing and under oath that (among other conditions) the government will comply in statutory "minimization procedures" (relating to the unnecessary dissmenination of nonpublic information), and that there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a "United States person" is a party.

In all other circumstances, the government may only conduct electronic surveillance
pursuant to FISA's advance procedure for judicial review. The application for the search order must contain the approval of the Attorney General, a description of the target of the surveillance, and proposed minimization procedures. The application must also include a statement of facts demonstrating probable cause that the target is either a foreign power or an agent of a foreign power, and that the facilities to be searched are being used or are about to be used by a foreign power or an agent of a foreign power. Finally, the application must include certification from an appropriate executive branch official that the information sought is foreign intelligence information, that the purpose of the surveillance is to obtain foreign intelligence information, and that normal techniques could not obtain the desired information. The executive official must present facts to support these certifications, but as against foreign powers or agents thereof, no showing of probable cause is required.

As suggested above, FISA provides a heightened standard of review for United States persons, which includes both citizens and aliens lawfully admitted for permanent residence. FISA expressly provides that United States Persons shall not be subject to FISA surveillance solely on the basis of their constitutionally protected First Amendment rights.

None of these protections are altered by the proposed legislation. Can it thus truly be claimed that allowing FISA to be applied in criminal prosecutions is unconstitutional if foreign intelligence is only one, and not the primary, purpose? No. At worst, should the Supreme Court observe the primary purpose distinction that has been indulged in lower courts, the consequence may be a denied warrant, or if a warrant issues, suppression of evidence. All proposed section 153 does is eliminate the statutory basis for judicial challenge to acquired evidence in a subsequent Article III trial of a terrorist suspect. Without the statutory impediment that the Attorney General seeks to eliminate, to find unconstitutionality under the Fourth Amendment, the Supreme Court would have to both disregard the longstanding claims of inherent presidential authority to protect the national security interests of the United States and, in a circumstance like the present national security emergency, the fact of that emergency. Warrant requirements need not be followed where there is special government need. Searches without warrants or probable cause are generally constitutional "when special needs, beyond the normal need for law enforcement" make these elements unworkable. Veronia School District 47J v. Acton, 515 U.S. 646 (1995). The constitutional standard for all searches or surveillance is "reasonableness."

Confronting the present terrorist threat is surely reasonable and meets that special need. Now more than ever our national security requires "the utmost stealth, speed, and secrecy." United States v. Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980) (adopting the foreign intelligence exception to the Fourth Amendment). A warrant requirement adds a procedural hurdle that reduces the flexibility of executive foreign intelligence initiatives launched in the aftermath of September 11 and before, and in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations. See Zweibon v. Mitchell, 516 F.2d 594, 704 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).

There is also the matter of institutional competence. The executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. True, courts possess expertise in making the probable cause determination involved in surveillance of suspected criminals, but they are not proficient in military affairs, which is what is most essential to our nation's security in the present climate. Few, if any, district courts would be truly competent to judge the importance of particular information to the security of the United States or the "probable cause" to demonstrate that the government in fact needs to recover that information from one particular source. Even the special court created by FISA comprehends the reality of judicial limitation by prescribing a "clearly erroneous" standard of review.

In contemplating the constitutionality of proposed section 153, the Supreme Court would also be certain to acknowledge that the executive branch not only has superior expertise in the
area of foreign intelligence, but also, as even the lower courts tendering the primary purpose rationale admit, is the constitutionally designated authority in foreign affairs. See First National Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765-68 (1972); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). The President is tasked by the constitution with the conduct of the foreign policy of the United States. See United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, so the separation of powers would enjoin the Court in all likelihood to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance. In my judgment, this should extend to the question of whether the pursuit of terrorists with FISA authority is at any given time more a military, than a criminal prosecution, objective.

It must be remembered that FISA itself did not transfer the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field. As suggested earlier, the statute does not contain a blanket warrant requirement; rather, it exempts certain categories of foreign intelligence surveillance. 50 U.S.C. 1802. Nor does the statute require the executive to satisfy the usual standards for the issuance of a warrant; the executive need demonstrate only probable cause that the target is a foreign power or a foreign agent and, in the case of United States citizens and resident aliens, that the government is not clearly erroneous in believing that the information sought is the desired foreign intelligence information and that the information cannot be reasonably obtained by normal methods. 50 U.S.C. sections1805 and 1804(a)(7)(E).

Of course, insofar as the above authorities sanction section 153 in general, it especially does not contravene constitutionally protected privacy interests in the context of pursuing terrorist activity. Almost by definition in such context foreign intelligence is a sufficient purpose.

Turning to Title II and the immigration proposals, it is evident that a broadened definition of terrorist is needed. Under current law, an alien is inadmissible and deportable for engaging in terrorist activity only when the alien has used explosives or firearms. Opponents of the Attorney General's proposal claim the new definition of terrorism is too broad. For example, Professor Cole specifically objects to adding the words "or other weapon or dangerous device" to section 201(a)(1)(B) (ii), which – as noted – presently prohibits only the use or threat to use any "explosive or firearm." Professor Cole asserts that expanding the term to include a residual category of other weapons trivializes terrorism. This is not constitutional law, it is opinion.

And I dare say is not the opinion of the families of the innocent men and women who had their commercial airliner turned into a "weapon and dangerous device," or whose family members were killed with a "box cutter" en route. It is not likely the opinion of the families who lost loved ones in the World Trade Center or the Pentagon or in rural Pennsylvania. Perhaps, prior to September 11, we could be lulled into the notion that not even terrorists would conceive of using innocent human beings as a weapon against other innocent human beings on our own soil, but sadly that is no longer our reality. Hypotheticals that the statute might be contorted to apply to a barroom brawl or a domestic dispute overlooks the reason we have been called here, demeans the judgment of federal officers, and are quite simply, too facetious to be credited as a legal objection.

Similarly, opponents of this legislation are concerned that aliens who associate with terrorist organizations may be deported when their purported association has somehow been confined to the non-terrorist functions of the organization. Terrorists unfortunately gain financial and other support hiding behind the facade of charity. Those opposing this new immigration authority seem undisturbed by this. That is again a policy choice; it is not a constitutional one. A statute, like proposed section 201, aimed at supplying a general prohibition against an alien contributing funds or other material support to a terrorist organization (as designated under current law by the Secretary of State) or to any non-designated organization that the alien "knows or reasonably should know" furthers terrorist activity does not violate the Constitution. Loosely citing cases that prohibit assigning guilt by association are inapposite. The cases cited by opponents of this legislation deal with domestic civil rights and the like pertain to the nonviolent association of American citizens not the fanatical planning of non citizens.

Eliminating terrorism requires not just excluding terrorists as individuals, but individuals who engage in terrorist activity either in an individual capacity or as a member of an organization. There is nothing unconstitutional about this. The Constitution does not require that associations of terrorists be ignored. Yes, the government must prove specific intent in a criminal trial that the individual had made the association to advance unlawful purposes. Section 201 envisions just that. "Engaging in terrorist activity" means committing a terrorist act or otherwise committing acts that "the actor knows, or reasonably should know, affords material support . . . .to any organization that the actor knows, or reasonably should know, is a terrorist organization, or to any individual whom the actor knows, or reasonably should know, has committed or plans to commit any terrorist activity." The specific intent requirements are not only explicit, but multiple. It is thus a blatant fabrication on the part of the objectors that the proposal severs "any tie between the support provided and terrorist activity." This is not, as the objectors claim, "guilt by association," but guilt for associating with terrorists for terrorism purposes.

The proposed legislation likewise does not punish those who innocently may support a front organization or even may support an individual who had previously committed a terrorist activity if the alien establishes "by clear and convincing evidence that such support was afforded only after that individual had permanently and publicly renounced and rejected the use of, and had cease to commit or support, any terrorist activity." Section 201 (a)(1)(C)(iii)(V).

The witnesses against the Attorney General's well-conceived proposal also mislead by mis-citation. They would have the committee believe, as one witness said last week in opposition before the Intelligence Committee, that "[t]he First and Fifth amendments apply equally to citizens and aliens residing in the United States." [Cole statement at n. 3, citing Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953)]. However, this cannot be said without qualification. With regard to exclusion of immigrants, U.S. authority is plenary. Yick Wo v. Hopkins, 118 U.S., at 369; Kwong Hai Chew, 344 U.S., at 596, n. 5. ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.") And the Court has long held that "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." United States ex rel. Knauff v. Shaughnessy, 338 U.S. at 544.

Terrorists or those seeking association with them clearly can be excluded from our Nation without offending the First Amendment or any other provision of the Constitution.
While additional rights attend an immigrant granted admission, they are not on par with citizens. In U.S. v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), for example, the Court opined that: "[Our] cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e.g., Plyler v. Doe, 457 U.S., at 212 (The provisions of the Fourteenth Amendment " 'are universal in their application, to all persons within the territorial jurisdiction ...' ").

These leads to the question of whether those posing terrorist threat can be detained by the Attorney General. The detention provision has been the subject of much debate and as of this writing was still in flux. The Senate version of section 203 provides for this insofar as "[t]he Attorney General may certify [for detention] an alien to be an alien he has reason to believe may commit, further, or facilitate [terrorist] acts . . . or engage in any other activity that endangers the national security of the United States." The objectors to the legislation recite, erroneously, that the proposal mandates indefinite detention. As the quoted language above indicates, the Attorney General's certification is permissive (may, not shall), even as following certification, the detention naturally follows. It would be illogical if it did not.

Is this detention based on certification unconstitutional? Not even the opponents claim this; instead, they opine it raises "constitutional concerns." They especially say this would be true if it were used to detain those giving "peace training to the IRA." Any statute can be made to raise constitutional concerns if it is manipulated to apply against something other than its constitutional object. The Congress is not tasked with drafting against the absurd. It is tasked with addressing the very real dangers of those who wish to kill us for no reason other than we are American. The Attorney General can be given authority to address such hatred. He can also be given the authority to address the risks posed by enemy aliens who may flee or who may seek to thwart our security by exchanging information or launching an additional attack.

But, claim the objectors, the Attorney General cannot be given authority to detain persons he cannot deport. Perhaps, but that is not the question that needs to be answered. The Attorney General has not asked for that authority. He seeks to detain those who have been found to be removable, but for various reasons (mostly related to international obligations to avoid repatriation to a country where torture is inevitable), cannot be removed immediately. Existing law allows aliens to be removed not only when they were originally inadmissible or convicted of a crime or for violation of immigration status, but also for national security or foreign relations reasons, or as implied under the existing post-removal statute, when the alien is "determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal." 8 U.S.C. 1231(a)(6) (1994 ed., Supp. V) and 8 C.F.R. 241.4(a) (2001). This post-removal detention period authority was recently construed by the Supreme Court in Zadvydas v. Davis, 121 S.Ct. 2491 (2001). This case of statutory interpretation does not rule out indefinite detention where dangerousness is accompanied by special circumstance. 121 S.Ct. at 2499. The Court explicitly noted that in establishing a presumptive six month period for detention nothing prevents the government from continuing detention with evidence of likely removal. Most relevantly, the Court did not even apply the presumptive six month detention limit to cases of detention for terrorist activity or its support. Wrote Justice Breyer for the Court:

Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. 121 S.Ct. at 2502.

The detention by Attorney General certification thus raises none of the constitutional problems suggested by the legislation's detractors. Morever, even the opponents of this carefully-drawn legislation must and do concede that it adequately provides for judicial review of the Attorney General's determination.

It should be noted that the House version of Section 203 is a bit different, providing, in addition to detention following a removal decision, for short-term detention of a suspected terrorist for up to seven days before charging an alien with a crime or a basis for removal. If no charges are filed, the alien is released. The House version provides for habeas review in the U.S. District Court of the District of Columbia of any decision to charge an alien. Under current regulation, INS may detain an alien for 48 hours before charging a crime or removable offense. Extending this time of detention without charge may raise more legal questions than the Senate version, which as explained by its proponents did not apply to an alien who was not already determined to be subject to removal. Whether a constitutional problem is presented by the House version likely depends upon the extent of due process protection afforded an individual alien in light of the degree of his or her substantial connection with this country. See, Plyler, supra.

Raising civil libertarian objections to new law enforcement provisions is a healthy sign of a vibrant democracy committed to human rights. America should be justly proud of its temperate actions in response to September 11, and its debate. Disagreement is not a sign of disrespect. However, with regard to the provisions discussed above, Congress should proceed to enactment since no significant constitutional objection has been raised. Should Congress nevertheless fear that the power asked for might be abused, the prudent course would not be to deny the needed authority, but to draft a cause of action for damages to rectify possible misapplication, or to provide for a sunset of the authority after a period of time sufficient to meet the present exigency. The possibility of abuse should not obscure the present need and the supposition of trust that one must have if our democratic order is to be safeguarded from those outside our borders who wish to subvert it.

Thank you for the opportunity to appear before you this morning.