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October 26, 2001
Patrick
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Northern
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US Bombing Strategy
Richard Lloyd Parry
Terrible Images
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October 25, 2001
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From
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Cashing
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Latin American Colloquium
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October 24, 2001
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Life
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During Wartime
Peter
Swire
New
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Poses Old Risks
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A
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Welcome
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Battle
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October 23, 2001
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Anthrax,
Cipro and the Bailout of Bayer
Carl Estabrook
Just War
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The Rule of Lawlessness?
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War
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Crushing
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October 22, 2001
Hamit
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Tom Turnipseed
War
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Patrick Cockburn
Killing
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Vest
The
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Shepherd
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Advice
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Hani Shukrallah
Capital
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October 26,
2001
Why I Opposed the 
Anti-Terrorism Bill
By Senator Russ Feingold
This has been a tragic time in our country. Before
I discuss this bill, let me first pause to remember, through
one small story, how September 11th has irrevocably changed so
many lives. In a letter to The Washington Post recently, a man
wrote that as he went jogging near the Pentagon, he came across
the makeshift memorial built for those who lost their lives there.
He slowed to a walk as he took in the sight before him: the red,
white and blue flowers covering the structure, and then, off
to the side, a second, smaller memorial with a card.
The card read, " Happy Birthday
Mommy. Although you died and are no longer with me, I feel as
if I still have you in my life. I think about you every day."
After reading the card, the man felt
as if he were "drowning in the names of dead mothers, fathers,
sons and daughters." The author of this letter shared a
moment in his own life that so many of us have had -- the moment
where televised pictures of the destruction are made painfully
real to us. We read a card, or see the anguished face of a grieving
loved one, and we suddenly feel the enormity of what has happened
to so many American families, and to all of us as a people.
We all also had our own initial reactions,
and my first and most powerful emotion was a solemn resolve to
stop these terrorists. And that remains my principal reaction
to these events. But I also quickly realized that two cautions
were necessary, and I raised them on the Senate floor the day
after the attacks.
The first caution was that we must continue
to respect our Constitution and protect our civil liberties in
the wake of the attacks. As the chairman of the Constitution
Subcommittee of the Judiciary Committee, I recognize that this
is a different world with different technologies, different issues,
and different threats. Yet we must examine every item that is
proposed in response to these events to be sure we are not rewarding
these terrorists and weakening ourselves by giving up the cherished
freedoms that they seek to destroy.
The second caution I issued was a warning
against the mistreatment of Arab Americans, Muslim Americans,
South Asians, or others in this country. Already, one day after
the attacks, we were hearing news reports that misguided anger
against people of these backgrounds had led to harassment, violence,
and even death.
I suppose I was reacting instinctively
to the unfolding events in the spirit of the Irish statesman
John Philpot Curran, who said: "The condition upon which
God hath given liberty to man is eternal vigilance."
During those first few hours after the
attacks, I kept remembering a sentence from a case I had studied
in law school. Not surprisingly, I didn' t remember which case
it was, who wrote the opinion, or what it was about, but I did
remember these words: "While the Constitution protects against
invasions of individual rights, it is not a suicide pact."
I took these words as a challenge to my concerns about civil
liberties at such a momentous time in our history; that we must
be careful to not take civil liberties so literally that we allow
ourselves to be destroyed.
But upon reviewing the case itself, Kennedy
v. Mendoza-Martinez, I found that Justice Arthur Goldberg had
made this statement but then ruled in favor of the civil liberties
position in the case, which was about draft evasion. He elaborated:
"It is fundamental that the great
powers of Congress to conduct war and to regulate the Nation's
foreign relations are subject to the constitutional requirements
of due process. The imperative necessity for safeguarding these
rights to procedural due process under the gravest of emergencies
has existed throughout our constitutional history, for it is
then, under the pressing exigencies of crisis, that there is
the greatest temptation to dispense with fundamental constitutional
guarantees which, it is feared, will inhibit governmental action.
"The Constitution of the United States is a law for rulers
and people, equally in war and peace, and covers with the shield
of its protection all classes of men, at all times, and under
all circumstances ... In no other way can we transmit to posterity
unimpaired the blessings of liberty, consecrated by the sacrifices
of the Revolution."
I have approached the events of the past
month and my role in proposing and reviewing legislation relating
to it in this spirit. I believe we must we must redouble our
vigilance. We must redouble our vigilance to ensure our security
and to prevent further acts of terror. But we must also redouble
our vigilance to preserve our values and the basic rights that
make us who we are.
The Founders who wrote our Constitution
and Bill of Rights exercised that vigilance even though they
had recently fought and won the Revolutionary War. They did not
live in comfortable and easy times of hypothetical enemies. They
wrote a Constitution of limited powers and an explicit Bill of
Rights to protect liberty in times of war, as well as in times
of peace.
There have been periods in our nation's
history when civil liberties have taken a back seat to what appeared
at the time to be the legitimate exigencies of war. Our national
consciousness still bears the stain and the scars of those events:
The Alien and Sedition Acts, the suspension of habeas corpus
during the Civil War, the internment of Japanese-Americans, German-Americans,
and Italian-Americans during World War II, the blacklisting of
supposed communist sympathizers during the McCarthy era, and
the surveillance and harassment of antiwar protesters, including
Dr. Martin Luther King Jr., during the Vietnam War. We must not
allow these pieces of our past to become prologue.
Mr. President, even in our great land,
wartime has sometimes brought us the greatest tests of our Bill
of Rights. For example, during the Civil War, the government
arrested some 13,000 civilians, implementing a system akin to
martial law. President Lincoln issued a proclamation ordering
the arrest and military trial of any persons "discouraging
volunteer enlistments, or resisting militia drafts." Wisconsin
provided one of the first challenges of this order. Draft protests
rose up in Milwaukee and Sheboygan. And an anti-draft riot broke
out among Germans and Luxembourgers in Port Washington, Wisconsin.
When the government arrested one of the leaders of the riot,
his attorney sought a writ of habeas corpus. His military captors
said that the President had abolished the writ. The Wisconsin
Supreme Court was among the first to rule that the President
had exceeded his authority.
In 1917, the Postmaster General revoked
the mailing privileges of the newspaper the Milwaukee Leader
because he felt that some of its articles impeded the war effort
and the draft. Articles called the President an aristocrat and
called the draft oppressive. Over dissents by Justices Brandeis
and Holmes, the Supreme Court upheld the action.
During World War II, President Roosevelt
signed orders to incarcerate more than 110,000 people of Japanese
origin, as well as some roughly 11,000 of German origin and 3,000
of Italian origin.
Earlier this year, I introduced legislation
to set up a commission to review the wartime treatment of Germans,
Italians, and other Europeans during that period. That bill came
out of heartfelt meetings in which constituents told me their
stories. They were German-Americans, who came to me with some
trepidation. They had waited 50 years to raise the issue with
a member of Congress. They did not want compensation. But they
had seen the government's commission on the wartime internment
of people of Japanese origin, and they wanted their story to
be told, and an official acknowledgment as well. I hope, Mr.
President, that we will move to pass this important legislation
early next year. We must deal with our nation's past, even as
we move to ensure our nation's future.
Now some may say, indeed we may hope,
that we have come a long way since the those days of infringements
on civil liberties. But there is ample reason for concern. And
I have been troubled in the past six weeks by the potential loss
of commitment in the Congress and the country to traditional
civil liberties.
As it seeks to combat terrorism, the
Justice Department is making extraordinary use of its power to
arrest and detain individuals, jailing hundreds of people on
immigration violations and arresting more than a dozen "material
witnesses" not charged with any crime. Although the government
has used these authorities before, it has not done so on such
a broad scale. Judging from government announcements, the government
has not brought any criminal charges related to the attacks with
regard to the overwhelming majority of these detainees.
For example, the FBI arrested as a material
witness the San Antonio radiologist Albader Al-Hazmi, who has
a name like two of the hijackers, and who tried to book a flight
to San Diego for a medical conference. According to his lawyer,
the government held Al-Hazmi incommunicado after his arrest,
and it took six days for lawyers to get access to him. After
the FBI released him, his lawyer said, "This is a good lesson
about how frail our processes are. It's how we treat people in
difficult times like these that is the true test of the democracy
and civil liberties that we brag so much about throughout the
world." I agree with those statements.
Now, it so happens that since early 1999,
I have been working on another bill that is poignantly relevant
to recent events: legislation to prohibit racial profiling, especially
the practice of targeting pedestrians or drivers for stops and
searches based on the color of their skin. Before September 11th,
people spoke of the issue mostly in the context of African-Americans
and Latino-Americans who had been profiled. But after September
11, the issue has taken on a new context and a new urgency.
Even as America addresses the demanding
security challenges before us, we must strive mightily also to
guard our values and basic rights. We must guard against racism
and ethnic discrimination against people of Arab and South Asian
origin and those who are Muslim.
We who don't have Arabic names or don't
wear turbans or headscarves may not feel the weight of these
times as much as Americans from the Middle East and South Asia
do. But as the great jurist Learned Hand said in a speech in
New York's Central Park during World War II: "The spirit
of liberty is the spirit which seeks to understand the minds
of other men and women; the spirit of liberty is the spirit which
weighs their interests alongside its own without bias . . . ."
Was it not at least partially bias, however,
when passengers on a Northwest Airlines flight in Minneapolis
three weeks ago insisted that Northwest remove from the plane
three Arab men who had cleared security?
Of course, given the enormous anxiety
and fears generated by the events of September 11th, it would
not have been difficult to anticipate some of these reactions,
both by our government and some of our people. Some have said
rather cavalierly that in these difficult times we must accept
some reduction in our civil liberties in order to be secure.
Of course, there is no doubt that if
we lived in a police state, it would be easier to catch terrorists.
If we lived in a country that allowed the police to search your
home at any time for any reason; if we lived in a country that
allowed the government to open your mail, eavesdrop on your phone
conversations, or intercept your email communications; if we
lived in a country that allowed the government to hold people
in jail indefinitely based on what they write or think, or based
on mere suspicion that they are up to no good, then the government
would no doubt discover and arrest more terrorists.
But that probably would not be a country
in which we would want to live. And that would not be a country
for which we could, in good conscience, ask our young people
to fight and die. In short, that would not be America.
Preserving our freedom is one of the
main reasons that we are now engaged in this new war on terrorism.
We will lose that war without firing a shot if we sacrifice the
liberties of the American people.
That is why I found the antiterrorism
bill originally proposed by Attorney General Ashcroft and President
Bush to be troubling.
The Administration's proposed bill contained
vast new powers for law enforcement, some seemingly drafted in
haste and others that came from the FBI's wish list that Congress
has rejected in the past. You may remember that the Attorney
General announced his intention to introduce a bill shortly after
the September 11 attacks. He provided the text of the bill the
following Wednesday, and urged Congress to enact it by the end
of the week. That was plainly impossible, but the pressure to
move on this bill quickly, without deliberation and debate, has
been relentless ever since.
It is one thing to shortcut the legislative
process in order to get federal financial aid to the cities hit
by terrorism. We did that, and no one complained that we moved
too quickly. It is quite another to press for the enactment of
sweeping new powers for law enforcement that directly affect
the civil liberties of the American people without due deliberation
by the peoples' elected representatives.
Fortunately, cooler heads prevailed at
least to some extent, and while this bill has been on a fast
track, there has been time to make some changes and reach agreement
on a bill that is less objectionable than the bill that the Administration
originally proposed.
As I will discuss in a moment, I have
concluded that this bill still does not strike the right balance
between empowering law enforcement and protecting civil liberties.
But that does not mean that I oppose everything in the bill.
Indeed many of its provisions are entirely reasonable, and I
hope they will help law enforcement more effectively counter
the threat of terrorism.
For example, it is entirely appropriate
that with a warrant the FBI be able to seize voice mail messages
as well as tap a phone. It is also reasonable, even necessary,
to update the federal criminal offense relating to possession
and use of biological weapons. It made sense to make sure that
phone conversations carried over cables would not have more protection
from surveillance than conversations carried over phone lines.
And it made sense to stiffen penalties and lengthen or eliminate
statutes of limitation for certain terrorist crimes.
There are other non-controversial provisions
in the bill that I support: those to assist the victims of crime,
to streamline the application process for public safety officers
benefits and increase those benefits, to provide more funds to
strengthen immigration controls at our Northern borders, to expedite
the hiring of translators at the FBI, and many others.
In the end, however, my focus on this
bill, as Chair of the Constitution Subcommittee of the Judiciary
Committee in the Senate, was on those provisions that implicate
our constitutional freedoms. And it was in reviewing those provisions
that I came to feel that the Administration's demand for haste
was inappropriate; indeed, it was dangerous. Our process in the
Senate, as truncated as it was, did lead to the elimination or
significant rewriting of a number of audacious proposals that
I and many other members found objectionable.
For example, the original Administration
proposal contained a provision that would have allowed the use
in U.S. criminal proceedings against U.S. citizens of information
obtained by foreign law enforcement agencies in wiretaps that
would be illegal in this country. In other words, evidence obtained
in an unconstitutional search overseas was to be allowed in a
U.S. court.
Another provision would have broadened
the criminal forfeiture laws to permit--prior to conviction--the
freezing of assets entirely unrelated to an alleged crime. The
Justice Department has wanted this authority for years, and Congress
has never been willing to give it. For one thing, it touches
on the right to counsel, since assets that are frozen cannot
be used to pay a lawyer. The courts have almost uniformly rejected
efforts to restrain assets before conviction unless they are
assets gained in the alleged criminal enterprise. This proposal,
in my view, was simply an effort on the part of the Department
to take advantage of the emergency situation and get something
that they've wanted to get for a long time.
The foreign wiretap and criminal forfeiture
provisions were dropped from the bill that we considered in the
Senate. Other provisions were rewritten based on objections that
I and others raised about them. For example, the original bill
contained sweeping permission for the Attorney General to get
copies of educational records without a court order. The final
bill requires a court order and a certification by the Attorney
General that he has reason to believe that the records contain
information that is relevant to an investigation of terrorism.
So the bill before us is certainly improved
from the bill that the Administration sent to us on September
19, and wanted us to pass on September 21. But again, in my judgement,
it does not strike the right balance between empowering law enforcement
and protecting constitutional freedoms. Let me take a moment
to discuss some of the shortcomings of the bill.
First, the bill contains some very significant
changes in criminal procedure that will apply to every federal
criminal investigation in this country, not just those involving
terrorism. One provision would greatly expand the circumstances
in which law enforcement agencies can search homes and offices
without notifying the owner prior to the search. The longstanding
practice under the Fourth Amendment of serving a warrant prior
to executing a search could be easily avoided in virtually every
case, because the government would simply have to show that it
has "reasonable cause to believe" that providing notice
"may" "seriously jeopardize an investigation."
This is a significant infringement on personal liberty.
Notice is a key element of Fourth Amendment
protections. It allows a person to point out mistakes in a warrant
and to make sure that a search is limited to the terms of a warrant.
Just think about the possibility of the police showing up at
your door with a warrant to search your house. You look at the
warrant and say, "yes, that's my address, but the name on
the warrant isn't me." And the police realize a mistake
has been made an go away. If you're not home, and the police
have received permission to do a "sneak and peak" search,
they can come in your house, look around, and leave, and may
never have to tell you.
Another very troubling provision has
to do with the effort to combat computer crime. The bill allows
law enforcement to monitor a computer with the permission of
its owner or operator, without the need to get a warrant or show
probable cause. That's fine in the case of a so called "denial
of service attack" or plain old computer hacking. A computer
owner should be able to give the police permission to monitor
communications coming from what amounts to a trespasser on the
computer.
As drafted in the Senate bill, however,
the provision might permit an employer to give permission to
the police to monitor the e-mails of an employee who has used
her computer at work to shop for Christmas gifts. Or someone
who uses a computer at a library or at school and happens to
go to a gambling or pornography site in violation of the Internet
use policies of the library or the university might also be subjected
to government surveillance -- without probable cause and without
any time limit. With this one provision, fourth amendment protections
are potentially eliminated for a broad spectrum of electronic
communications.
I am also very troubled by the broad
expansion of government power under the Foreign Intelligence
Surveillance Act, known as FISA. When Congress passed FISA in
1978 it granted to the executive branch the power to conduct
surveillance in foreign intelligence investigations without meeting
the rigorous probable cause standard under the Fourth Amendment
that is required for criminal investigations. There is a lower
threshold for obtaining a wiretap order from the FISA court because
the FBI is not investigating a crime, it is investigating foreign
intelligence activities. But the law currently requires that
intelligence gathering be the primary purpose of the investigation
in order for this lower standard to apply.
This bill changes that requirement. The
government now will only have to show that intelligence is a
"significant purpose" of the investigation. So even
if the primary purpose is a criminal investigation, the heightened
protections of the Fourth Amendment won't apply.
It seems obvious that with this lower
standard, the FBI will try to use FISA as much as it can. And
of course, with terrorism investigations that won't be difficult,
because the terrorists are apparently sponsored or at least supported
by foreign governments. This means that the fourth amendment
rights will be significantly curtailed in many investigations
of terrorist acts.
The significance of the breakdown of
the distinction between intelligence and criminal investigations
becomes apparent when you see the other expansions of government
power under FISA in this bill. One provision that troubles me
a great deal is a provision that permits the government under
FISA to compel the production of records from any business regarding
any person, if that information is sought in connection with
an investigation of terrorism or espionage.
Now we're not talking here about travel
records pertaining to a terrorist suspect, which we all can see
can be highly relevant to an investigation of a terrorist plot.
FISA already gives the FBI the power to get airline, train, hotel,
car rental and other records of a suspect.
But under this bill, the government can
compel the disclosure of the personal records of anyone--perhaps
someone who worked with, or lived next door to, or went to school
with, or sat on an airplane with, or has been seen in the company
of, or whose phone number was called by -- the target of the
investigation.
And under this new provisions all business
records can be compelled, including those containing sensitive
personal information like medical records from hospitals or doctors,
or educational records, or records of what books someone has
taken out of the library. This is an enormous expansion of authority,
under a law that provides only minimal judicial supervision.
Under this provision, the government
can apparently go on a fishing expedition and collect information
on virtually anyone. All it has to allege in order to get an
order for these records from the court is that the information
is sought for an investigation of international terrorism or
clandestine intelligence gathering. That's it. On that minimal
showing in an ex parte application to a secret court, with no
showing even that the information is relevant to the investigation,
the government can lawfully compel a doctor or hospital to release
medical records, or a library to release circulation records.
This is a truly breathtaking expansion of police power.
Let me turn to a final area of real concern
about this legislation, which I think brings us full circle to
the cautions I expressed on the day after the attacks. There
are two very troubling provisions dealing with our immigration
laws in this bill.
First, the Administration's original
proposal would have granted the Attorney General extraordinary
powers to detain immigrants indefinitely, including legal permanent
residents. The Attorney General could do so based on mere suspicion
that the person is engaged in terrorism. I believe the Administration
was really over-reaching here, and I am pleased that Senator
Leahy was able to negotiate some protections. The Senate bill
now requires the Attorney General to charge the immigrant within
seven days with a criminal offense or immigration violation.
In the event that the Attorney General does not charge the immigrant,
the immigrant must be released.
While this protection is an improvement,
the provision remains fundamentally flawed. Even with this seven-day
charging requirement, the bill would nevertheless continue to
permit the indefinite detention in two situations. First, immigrants
who win their deportation cases could continue to be held if
the Attorney General continues to have suspicions. Second, this
provision creates a deep unfairness to immigrants who are found
not to be deportable for terrorism but have an immigration status
violation, such as overstaying a visa. If the immigration judge
finds that they are eligible for relief from deportation, and
therefore can stay in the country because, for example, they
have longstanding family ties here, the Attorney General could
continue to hold them.
Now, I am pleased that the final version
of the legislation includes a few improvements over the bill
that passed the Senate. In particular, the bill would require
the Attorney General to review the detention decision every six
months and would allow only the Attorney General or Deputy Attorney
General, not lower level officials, to make that determination.
While I am pleased these provisions are included in the bill,
I believe it still falls short of meeting even basic constitutional
standards of due process and fairness. The bill continues to
allow the Attorney General to detain persons based on mere suspicion.
Our system normally requires higher standards of proof for a
deprivation of liberty. For example, deportation proceedings
are subject to a clear and convincing evidence standard. Criminal
convictions, of course, require proof beyond a reasonable doubt.
The bill also continues to deny detained
persons a trial or hearing where the government would be required
to prove that the person is, in fact, engaged in terrorist activity.
This is unjust and inconsistent with the values our system of
justice holds dearly.
Another provision in the bill that deeply
troubles me allows the detention and deportation of people engaging
in innocent associational activity. It would allow for the detention
and deportation of individuals who provide lawful assistance
to groups that are not even designated by the Secretary of State
as terrorist organizations, but instead have engaged in vaguely
defined "terrorist activity" sometime in the past.
To avoid deportation, the immigrant is required to prove a negative:
that he or she did not know, and should not have known, that
the assistance would further terrorist activity.
This language creates a very real risk
that truly innocent individuals could be deported for innocent
associations with humanitarian or political groups that the government
later chooses to regard as terrorist organizations. Groups that
might fit this definition could include Operation Rescue, Greenpeace,
and even the Northern Alliance fighting the Taliban in northern
Afghanistan. This provision amounts to "guilt by association,"
which I believe violates the First Amendment.
And speaking of the First Amendment,
under this bill, a lawful permanent resident who makes a controversial
speech that the government deems to be supportive of terrorism
might be barred from returning to his or her family after taking
a trip abroad.
Despite assurances from the Administration
at various points in this process that these provisions that
implicate associational activity would be improved, there have
been no changes in the bill on these points since it passed the
Senate.
Now here's where my cautions in the aftermath
of the terrorist attacks and my concern over the reach of the
anti-terrorism bill come together. To the extent that the expansive
new immigration powers that the bill grants to the Attorney General
are subject to abuse, who do we think is most likely to bear
the brunt of that abuse? It won't be immigrants from Ireland,
it won't be immigrants from El Salvador or Nicaragua, it won't
even be immigrants from Haiti or Africa. It will be immigrants
from Arab, Muslim, and South Asian countries. In the wake of
these terrible events, our government has been given vast new
powers and they may fall most heavily on a minority of our population
who already feel particularly acutely the pain of this disaster.
When concerns of this kind have been
raised with the Administration and supporters of this bill they
have told us, "don't worry, the FBI would never do that."
I call on the Attorney General and the Justice Department to
ensure that my fears are not borne out.
The anti-terrorism bill that we consider
in the Senate today highlights the march of technology, and how
that march cuts both for and against personal liberty. Justice
Brandeis foresaw some of the future in a 1928 dissent, when he
wrote:
"The progress of science in furnishing
the Government with means of espionage is not likely to stop
with wire-tapping. Ways may some day be developed by which the
Government, without removing papers from secret drawers, can
reproduce them in court, and by which it will be enabled to expose
to a jury the most intimate occurrences of the home. . . . Can
it be that the Constitution affords no protection against such
invasions of individual security?"
We must grant law enforcement the tools
that it needs to stop this terrible threat. But we must give
them only those extraordinary tools that they need and that relate
specifically to the task at hand.
In the play, "A Man for All Seasons,"
Sir Thomas More questions the bounder Roper whether he would
level the forest of English laws to punish the Devil. "What
would you do?" More asks, "Cut a great road through
the law to get after the Devil?" Roper affirms, "I'd
cut down every law in England to do that." To which More
replies:
"And when the last law was down,
and the Devil turned round on you--where would you hide, Roper,
the laws all being flat? This country's planted thick with laws
from coast to coast . . . and if you cut them down . . . do you
really think you could stand upright in the winds that would
blow then? Yes, I'd give the Devil benefit of law, for my own
safety's sake. "
We must maintain our vigilance to preserve
our laws and our basic rights.
We in this body have a duty to analyze,
to test, to weigh new laws that the zealous and often sincere
advocates of security would suggest to us. This is what I have
tried to do with this anti-terrorism bill. And that is why I
will vote against this bill when the roll is called.
Protecting the safety of the American
people is a solemn duty of the Congress; we must work tirelessly
to prevent more tragedies like the devastating attacks of September
11th. We must prevent more children from losing their mothers,
more wives from losing their husbands, and more firefighters
from losing their heroic colleagues. But the Congress will fulfill
its duty only when it protects both the American people and the
freedoms at the foundation of American society. So let us preserve
our heritage of basic rights. Let us practice as well as preach
that liberty. And let us fight to maintain that freedom that
we call America.
[This is the text of remarks delivered
on the senate floor by Senator Feingold during the October 25,
2001 debate on the final passage of the Anti-Terrorism Act. Feingold
was the lone vote against the bill in the senate. You can email
Senator Feingold at his senate webpage.
]
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