Statement of William P. Barr on H.R. 1710 The Comprehensive Aniterrorism Act of 1995" House Judiciary Committee June 12, 1995 Dear Mr. Chairman and distinguished members of the house Judiciary Committee: It is an honor to have been invited here to testify about the critical topic of terrorism and to express my strong support for H.R. 1710, the Comprehensive Antiterrorism Act of 1995. The legislation, in my view, should enjoy wide bipartisan support. Recent events have dramatized a fact that the American people, I think, have intuitively understood and law enforcement has known for a long time: the United States is not immune from terrorist attack. I agree with these experts who foresee a continuing, and probably heightened, threat of terrorist attacks by both foreign and domestic individuals and groups. Of course, we should be careful not to exaggerate or sensationalize the risk; I think it is unlikely we will undergo a sudden wave of large-scale~ attacks. But, a number of factors have coalesced in recent years which do presage that terrorism will bc a persistent danger. These will run the gamut from isolated fanatics who plant a crude pipe bomb to well-organized groups capable of carrying out catastrophic attacks. There is no doubt that American law enforcement and intelligence agencies have substantial resources and capabilities to deal with the terrorist threat today. Indeed, American agencies, particularly the FBI, have an enviable record to date in addressing terrorist threats. Nevertheless, in my view, existing resources and authority are not fully adequate. While I see no need for sweeping changes, there are clearly additional reasonable steps that should be taken to enhance our ability to deal with terrorism. Obviously, we cannot provide absolute security. But I think there are prudent steps we can take today that will markedly increase the FBl's ability to detect and interdict terrorist plans before they are carried out. Ensuring that our anti-terrorist capabilities are robust will also help deter some terrorist activity. From my own experience at the Department of Justice, it was clear to me that there are foreign groups who, until now, have chosen not to carry out attacks in the United States, but have focused elsewhere, because of their perception of the FBl's vigorous and effective anti-terrorist capabilities. I believe it is critical that whatever can be done to keep our guard up should be done, consistent with our constitutional principles and our free traditions. In this regard, I believe H.R. 1710 is an excellent bill. It is a balanced and reasonable proposal that will substantially enhance our ability to counter terrorism, while at the same time preserving our cherished liberties. The bill draws upon some important proposals made under the Bush Administration, as well as proposals made by the current Administration, and in several cases significantly improves upon them. Before I get into some specifics, I would like to make a few overarching points. First, this is not, as some suggest, a knee-jerk or ill considered overreaction to a specific event. Most of these proposals were not thought of overnight. By-and-large most of them have been on the table for some time and reflect the combined wisdom and experience of both Republican and Democratic Administrations who have had to grapple with these problems. Consequently, the proposals are not sweeping changes, but measured and modest steps. Second. the proposals do not involve any erosion of constitutional liberties. On the contrary, they are designed to ensure that the government carries out its constitutional obligations to protect Americans in the exercise of their freedoms and to preserve the structure of our free government. There is no change in the constitutional standards that protect citizens from improper government intrusion into their private affairs. And third, having worked closely with the FBI and the personnel at the Department of Justice, I have the utmost confidence that law enforcement agencies today will carry out these responsibilities with integrity and with sensitivity for constitutional liberties. I think the leadership and the rank and file are men and women who are deeply dedicated and committed to our Constitution and to protecting and serving the citizens of this country, and they have no desire to harass or to intrude into the private affairs of law-abiding and nonviolent political groups. Now let me turn to some specifics of H.R. 1710. Title lll of H.R. 1710 ensures that certain appropriate investigative tools are available to law enforcement in terrorism cases. In my view, none of these provisions involve an erosion of privacy rights. For the most part, these provisions simply ensure that perfectly constitutional and sensible investigative techniques that are authorized in various other types of cases are equally applicable to terrorism cases. In all cases, these proposed authorities conform to constitutional guarantees. I have noticed, for example, criticism of the proposal in section 308 to allow temporary emergency wiretaps in terrorism cases -- with the suggestion made that this represents a wide expansion of powers. These criticisms are unjustified. Emergency wiretap authority exists under current law with respect to a range of criminal activity, including "conspiratorial activities characteristic of organized crime." 18 U.S.C. 2518 (7)(a)(iii). This existing authority is subject to substantial safeguards, including the requirement that the government must promptly establish "probable cause" and obtain a court order. Existing emergency authority has been sparingly used and I am not aware of any indication of abuse. It is clearly appropriate that the same emergency authority that applies with respect to Mafia conspiracies also applies to terrorist conspiracies which, by their nature, are directed at the destruction of life and property. Similarly, section 309's authorization of "roving" wiretaps is reasonable and fully in accord with constitutional safeguards. While this concept sounds sinister, it is really quite sensible and in many cases essential. In earlier days when the wiretap statute was first enacted, wiretaps were targeted at a specific telephone. Today, however, with increased mobility, cases arise where the government clearly has "probable cause" to believe that a particular individual is involved in criminal activity (and therefore as a constitutional matter, has the right to intercept the individual's communications) but cannot establish in advance the particular phones that individual may use. Section 309 simply allows the government to obtain a warrant that authorizes following the targeted individuals' communications rather than staying anchored to a particular telephone. Still, section 309 imposes safeguards by requiring proapproval by a top Justice Department officio and a showing that it is impractical to identify a particular phone. This is perfectly in line with constitutional protections. After all, the right to privacy guaranteed under the Forth Amendment is an individuals right to privacy; it is not an inanimate object's (a telephone's) right to privacy. Section 309's concept of roving wiretaps targeted at particular suspects rather than specific phones should not cause alarm. There has been much comment on the proposal to amend the Posse Comitatus Act to allow military assistance in terrorism cases involving chemical or biological weapons. On the one hand, the tradition that the army should not directly carry out law enforcement actions is one we all treasure; on the other hand, I can tell you, based on my own direct experience, that the threat of biological or chemical terrorism is a real one and that law enforcement would likely need to call on the technical and logistical assistance of the military to deal with any future attempted attack. Section 312 of H.R. 1710 is a wise and carefully crafted provision that strikes the right balance. It continues to prohibit direct law enforcement actions by the military, while still allowing "technical and logistical assistance." It is thus faithful to the principles of the Posse Comitatus Act, while recognizing the reality of our obligation to take every practical step to prevent a biological/chemical catastrophe. My own view is that this provision really only clarifies existing law; it reflects how the Posse Comitatus Act would be interpreted today in the event of an attack. Moreover, it is comparable to other existing exceptions to the Posse Comitatus Act that Congress has already authorized for counter narcotics activities. 10 U.S.C. 371-375. Title V of H.R. 1710 contains a number of important provisions relating to the immigration laws. Existing law simply does not give law enforcement the tools to deal effectively with alien terrorists who are either present in or entering the United States. I learned this first hand during Desert Storm and several other episodes while I was at the Department of Justice. The reforms proposed in H.R. 1710 are similar to ones initially proposed under the Bush Administration and now by the Clinton Administration. The provision that has drawn the most fire is the special court for removing alien terrorists. This proposal grew out of actual cases. It is imperative we deal with the Hobson's choice that exists where we have clear evidence that a particular alien in the country is a dangerous terrorist and, yet, we are relying on information that we cannot disclose without creating equal danger to the American people and disclosing sources that we may need to continue to monitor these terrorist groups. Section 601 of H.R. 1710 sets forth a very balanced and reasonable way of dealing with that Hobson's choice. Indeed, Section 601 adopts safeguards beyond those proposed by the Administration and well beyond what is required by the Constitution. In the case of a permanent resident alien, an attorney for the alien would be permitted access to the classified information upon which the Government's decision was based. This should remove any objection to this removal procedure. In sum, H.R. 1710 would significantly enhance the ability of law enforcement to deal with both foreign and domestic terrorism. It does this without undermining our cherished constitutional liberties. It deserves the bipartisan support of this Congress.
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