NACDL NewsRELEASE EMBARGOED UNTIL 1:00 P.M. WEDNESDAY, DECEMBER 6, 1995 Expanded 'Counter-Terrorism' Powers Unnecessary and Dangerous For More Information: Paul Levine 202-872-8688  "Tap 'Em, Entrap 'Em, and Zap 'Em" Antiterrorism Bill Imperils Americans' Rights, Puts Federal "Big Brother" in Charge Washington, DC, December 6, 1995 -- "The only Americans who have any need at all for sweeping new 'antiterrorism' legislation are politicians desperate to boost their ratings back home before Congress adjourns for the year," noted John Flannery, co- chair of the National Association of Criminal Defense Lawyers' (NACDL) Legislative Committee, at a Capitol Hill press conference organized by a broad-based coalition of groups opposed to legislation the House is expected to take up early next week. "Federal law enforcement agencies already have all the power they need to halt terrorism in the United States. They have more power than they can handle," Flannery, a criminal defense lawyer in Leesburg, Virginia, said. "The abuses inflicted on ordinary Americans at Waco and Ruby Ridge made that all too clear." "The 'Comprehensive Antiterrorism Act' needlessly compromises the privacy of all Americans, opens the door to increased use of the military against civilians, threatens to infect the criminal justice system with secret procedures, and grants new powers to agencies that have demonstrated their inability to properly use those they already have. And it chokes offfederal review of sentences, including death sentences, presumably to execute more people faster. It deserves to be called the "Tap 'Em, Entrap 'Em, and Zap 'Em" bill," he declared. "Before Congress confers even more power upon the FBI, the ATF, over 50 other federal law enforcement agencies, to the military, and to the President, I urge legislators to weigh more carefully what such wholesale expansion of government authority will really mean for the safety, privacy, and freedom of our citizens," Flannery cautioned. "At a minimum, Congress must address -- in a meaningful rather than a political way -- the serious issues raised by Waco, Ruby Ridge, and other cases where federal law enforcement agencies have injured innocent citizens while abusing the vast array of powers they now have," he added. "We underscored the urgent need for increased oversight of law enforcement activities in the letter this coalition sent to congressional leaders several weeks ago." (more) "Tap 'Em, Entrap 'Em, and Zap 'Em"Antiterrorism Bill NACDL News Release Emba~goed Until: 1:00 p.m. Wednesday, December 5, 1995 Page 2 of 2 Flannery referred to the letter sent to House and Senate leaders on October 24, 1995, by the coalition including NACDL, the National Rifle Association, American Civil Liberties Union, Second Amendment Foundation, National Black Police Association, and nine other groups from across the political spectrum. The letter addressed several categories of lawless or abusive behavior by federal law enforcement agencies and urged specific reforms, including a national commission to comprehensively review law enforcement policies and practices. "We're waiting for a response," Flannery said. "Meanwhile, conferring still greater powers on these very agencies is an open invitation for even more devastating abuses of American citizens." ### "Tap 'Em, Entrap 'Em, and Zap 'Em" Bill Would Relinquish Americans' Rights and Put Federal "Big Brother" in Charge Washington, DC, December 6, 1995 -- The "Comprehensive Antiterrorism Act of 1995" needlessly expands the reach of federal law enforcement agencies into constitutionally-protected private communications and information about Americans. It grants new, intrusive powers to agencies that have demonstrated their inability to properly control the exercise of the powers they already have. It opens the door to increased use of military tactics and equipment in civilian law enforcement. It introduces secret procedures into our criminal justice system through the back door. And it chokes off access of inmates to federal review of their sentences -- including death sentences -- without requiring competent counsel at their trials. This bill deserves to be called the "Tap 'Em, Entrap 'Em, and Zap 'Em" bill. The only Americans who have any need at all for sweeping new "antiterrorism" legislation are politicians desperate to boost their ratings back home before Congress adjourns for the year. Federal law enforcement agencies have all the power they need to halt terrorism in the United States. They have more power than they can handle. The terrible incidents at Waco and Ruby Ridge made that all too clear. Before Congress confers even more power upon the FBI, the ATF, over 50 other federal law enforcement agencies, the President, and even the military, I urge legislators to consider more carefully what this wholesale expansion of government authority to invade and control the lives of Americans will really mean for the safety, privacy, and freedom of citizens now and in the future. At a minimum, Congress must address -- in a meaningful rather than a political way -- the serious issues raised by Waco, Ruby Ridge, and other cases where federal law enforcement agencies have injured innocent citizens while using or abusing powers they now have. On October 24, this coalition, including NACDL, American Civil Liberties Union, the National Rifle Association, Second Amendment Foundation, National Black Police Association, and nine other groups from across the political spectrum sent to House and Senate leaders a letter addressing those issues and urging specific reforms, including establishment of a national commission to comprehensively review law enforcement policies and practices. The letter highlighted the urgent need for added oversight of law enforcement activities. We're waiting for a response. Meanwhile, conferring still greater powers on these very agencies is an open invitation for even more devastating abuses of American citizens. Specific Concerns Aside from the fact that this bill, its Senate companion, and similar proposals are absolutely unnecessary, their dangers are concentrated in five areas: decreasing privacy rights, increasing wiretapping, empowering the President to politicize the criminal law, denying fundamental due process in certain proceedings, and increasing the involvement ofthe military in civilian law enforcement. Moreover, the bill is expected to have so-called habeas corpus "reform" appended to it. NACDL vigorously opposes the scapegoating of habeas and Congress' callous insistence that death-row inmates' access to federal court review be curtailed. The cynical attachment of this unrelated measure to 'antiterrorism' legislation further demonstrates that the legislation is simply a political expedient. Arbitrary Invasions of Citizens' Privacy The 'antiterrorism' proposals would expand the FBI's authority to gain access to information on citizens maintained by private business organizations, without requiring warrants, court orders, or any evidence of criminal activity. Without you ever knowing it, the FBI could obtain information about every aspect of your life -- your personal finances, your travel history, what you had for lunch at a restaurant -- as long as the Bureau tells businesses it needs the information for 'national security.' This runs 180 degrees against what our democracy is about and the fundamental constitutional principles that underlie it. The Fourth Amendment requirement of probable cause is a bedrock principle not only of the American system of justice, but of our free society. It says the government has no business investigating citizens randomly, forcing information out of the hands of the private parties to whom we entrust it. The idea of Congress putting its stamp of approval on and expanding this McCarthy-like practice -- it's Big Brother writ large. Pervasive Wiretapping by Government The bills would expand the authority of law enforcement agencies to tap telephones and other telecommunications equipment and eavesdrop on the private conversation of Americans. They would permit wiretaps without court orders, and it would take another huge bite out of the Fourth Amendment by allowing in-court use of illegal wiretaps. Tapping people's telephones and computers is one of the most intrusive, privacy- destroying investigative techniques imaginable. In even considering authorizing wiretapping on the scale permitted by this bill, Congress is stepping completely outside of the American constitutional tradition. Political Labeling of "Terrorist Organizations" The bills empower the President to designate disfavored groups as "terrorist organizations," and it outlaws contributions by law-abiding citizens to even the legal activities of such organizations. Members of such organizations could be barred from entering the U.S. as "terrorists" -- based not on anything they've done, but on mere membership in an organization. This is guilt by association. It contravenes our First Amendment, and it is anathema to American values. Giving the Executive Branch the power to selectively criminalize groups invites abuse. What court will second-guess the President on a question so political? Secret Evidence: The Star Chamber The bills would authorize the government to deport persons residing legally in the U.S., based on secret evidence that the person would have no right to see. A more blatant contravention of the Constitution can hardly be imagined. The right to see and confront one's accuser and the evidence against one are indispensable elements of due process, one of the most basic, essential concepts in American law -- enshrined in our Fifth Amendment. Resort to such a practice resurrects the "Star Chamber," the secret medieval court whose proceedings were concealed from public view -- and public scrutiny. It is unnecessary and unworthy of the American justice system. At least one federal court has already held that deportation based on secret evidence violates due process (American-Arab Anti-Discrimination Committee v. Reno, 1995 U.S. App. LEXIS 31415 (9th Cir. November 8, 1995)). If classified information must be used in deportation hearings based on alleged terrorist involvement, the Classified Information Procedures Act (CIPA), which already applies in criminal trials, provides an effective means of protecting sensitive government sources while perrnitting persons against whom classified information is sought to be used reasonable notice of that information and a constitutionally-adequate opportunity to respond to it. The CIPA procedures could be applied in immigration proceedings. If, instead, procedures even less respectful of constitutional guarantees are adopted, we may soon find ourselves with Kafka-esque "national security" exceptions throughout the American justice system. Military Involvement in Civilian Law Enforcement The bills would expand the list of exceptions to the Posse Comitatus Act, passed in 1878, which forbids the use of the U.S. military in civilian law enforcement. The Waco and Ruby Ridge tragedies offer direct evidence that use of military tactics and equipment in law enforcement dramatically increases the risk of needless injury, even loss of life, to civilians. Military tactics and equipment are designed -- and soldiers are trained -- to fight against armed enemies under special rules that do not incorporate the Constitution's protections. Military force is too blunt and dangerous an instrument to used for law enforcement against America's own citizens. Exceptions to the Posse Comitatus Act must be kept to a minimum, consistent with the criteria set forth in today's joint letter. Overbroad definition of Terrorism The bills create a definition of "terrorism" so broad that it could encompass virtually any act that is defined as a crime under state law. This would permit federal law enforcement agencies to selectively and arbitrarily involve themselves in any state investigation or prosecution they choose. Under the U.S. Sentencing Guidelines, conviction of any felony involving "terrorism" carries enhanced penalties. Habeas Corpus "Reformn In a cynical attempt to pass controversial legislation by attaching it to a bill thought to have broad political support, House leaders have apparently agreed to incorporate habeas corpus "reform" into the "antiterrorism" bill. Habeas has nothing to do with preventing terrorism. Habeas provides an opportunity for federal courts to ensure that state convictions and sentences, including death sentences, have been imposed within the bounds of the Constitution. It is not the cause of the perceived "delay" in carrying out executions; most of the time needed for post-conviction review of death sentences is at the state level. Nonetheless, habeas has been turned into a political scapegoat by those eager to appear "tough on crime." The habeas provisions of the House bill would limit the access of inmates, including death-row inmates, to critical federal review of their convictions and sentences. It would impose arbitrary deadlines and obstacles to habeas review. This would constitute an unprecedented narrowing of the Constitutional protection against wrongful incarceration and execution, and NACDL opposes it. If habeas must be limited, however, no legislation can be acceptable that does not address the single biggest cause of constitutional error in death penalty cases -- the need for competent and adequately-compensated counsel at the original trial. Federal courts grant some form of relief in 40 percent of the habeas cases they hea~, and the single most frequent ground for such relief is ineffective assistance of counsel at trial. It is foolhardy, wasteful, and cynical for legislators to say they're trying to "improve" the system for death penalty appeals by ignoring the need for basic justice at the trial level. With the inclusion of the habeas measure, this bill can truly be called the "Tap 'Em, Entrap 'Em, and Zap 'Em" bill. We urge Congress not to enact "antiterrorism" and habeas "reform" legislation that would despoil our constitutional system. ###