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Homeland Security

                     Statement of William P. Barr
                               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
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
     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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