Caution Is Urged on Terrorism Legislation
Measures Reviewed To Protect Liberties

By Walter Pincus
Washington Post Staff Writer
Friday, September 21, 2001; Page A22

The Justice Department's anti-terrorism legislation, which once seemed likely to sweep through Congress on the storm of anger arising out of the World Trade Center and Pentagon attacks, has been slowed as legislators and public interest groups begin to review its provisions.

With dozens of proposed changes in criminal and immigration law, the package put together by Attorney General John D. Ashcroft and his staff has quickly drawn opposition from some members of Congress, as well as a diverse collection of interest groups.

Yesterday, more than 125 of those organizations joined in a statement warning that legislation and regulations adopted in the heat of anger could "erode the liberties and freedoms that are at the core of the American way of life."

The coalition, whose members range from the conservative Eagle Forum and the Gun Owners of America to the liberal National Lawyers Guild and the Gay and Lesbian Task Force, called for calm and deliberate action that honors constitutional rights -- especially free speech -- and avoids stigmatizing any racial, religious or ethnic group.

Organizations representing Muslim, Hispanic, Chinese, Japanese and Arab Americans joined the alliance, along with such traditional civil rights groups as the NAACP and the Leadership Conference on Civil Rights.

The target of their concern is still considered a work in progress as Justice Department lawyers and staff members from the House and Senate judiciary committees try to identify areas of agreement and work out points of disagreement.

Those differences "are expected to be narrowed" by the time the Senate panel holds a hearing on the measure on Tuesday, a committee spokesman said yesterday. House Majority Leader Richard K. Armey (R-Tex.) told reporters that lawmakers may be able to move quickly on sections of the legislation dealing with changes needed specifically for the current investigation.

Among the most controversial sections are those that would widen the government's ability to detain or deport foreigners. The government already has that power over foreigners who support terrorist organizations. The legislation would expand that to foreigners who support a sub-group not involved in terrorism but which is associated with a terrorist organization.

The provision would apply "to all aliens regardless of when they entered the United States or when they committed the terrorist activity," according to a Justice Department analysis of the legislation.

Another provision would allow the attorney general to detain a foreigner by certifying that he or she poses a threat to national security -- even a person who has been granted political asylum in this country and, thus, cannot be deported.

Already under sharp criticism is a section that would permit a foreigner to be detained for an unlimited amount of time during a national emergency, such as the situation in the past week when scores of foreigners have been taken into custody.

The proposed changes also would permit investigators with simple search warrants to seize devices with voice mail messages and listen to them. Currently, investigators must obtain a wiretap court order before playing such a tape. This provision also would apply to unopened e-mail on computers seized pursuant to a search warrant and even to e-mail and unopened voice mail held by an individual's communications service provider.

Many provisions have no opposition. For example, one gives the secretary of state authority to pay a reward of $10 million or more in a case where "doing so would be important to the national security interests of the United States," according to the Justice Department analysis. One addition to the reward provision, the analysis says, would apply to "the identification or location of an individual who holds a key leadership position in a terrorist organization" -- such as Osama bin Laden.

Several provisions are designed to permit law enforcement officials and intelligence operators to share information obtained by their separate investigations. For example, wiretaps authorized under criminal investigations could be disclosed to the intelligence community. Now, such distribution for reasons other than use in a criminal probe is prohibited.

In addition, wiretaps authorized under the Foreign Intelligence Surveillance Act (FISA), which are obtained from a special court and without probable-cause requirements needed for criminal cases, also would be shared. Some critics of this proposal suggest criminal investigators unable to get a court order for a wiretap would use the intelligence rationale. FISA wiretaps also would be allowed to continue for up to a year, rather than the current 90 days.

Another change sought by the Justice Department would permit the use in U.S. courts of a foreign government's intercept of a U.S. citizen's telephone conversations abroad, "even if the collection violated" the Fourth Amendment rights guaranteed in this country. The one limitation is that U.S. law enforcement officials could not have been involved in arranging or suggesting the overseas wiretap.

Investigators also would be granted access to education records now shielded by privacy protections of federal education laws. That change would apply to general criminal prosecutions, as well as national security cases.

The legislation also addresses penalty issues. Anyone convicted of involvement in planning a terrorist act would be subject to the maximum penalty allowed for commission of the terrorism. This change would bring the terrorism conspiracy penalty provisions in line with those applicable in drug crimes.

Another provision would subject those convicted of terrorist crimes to post-imprisonment supervision. That means law enforcement officials could track them and maintain oversight over them after they have served any prison term, potentially for their lifetimes. A similar provision is part of the drug laws.

Staff writers Thomas B. Edsall and Jonathan Krim contributed to this report.