By Dan Eggen
The Washington Post December 2004
Intelligence bill includes disputed anti-terror moves.
The intelligence package that Congress approved this week includesa series of little-noticed measures that would broaden thegovernment's power to conduct terrorism investigations, includingprovisions to loosen standards for FBI surveillance warrants and allowthe Justice Department to more easily detain suspects without bail. Other law-enforcement-related measures in the bill - expected tobe signed by President Bush next week - include an expansion of thecriteria that constitute "material support" to terrorist groups andthe ability to share U.S. grand jury information with foreigngovernments in urgent terrorism cases. These and other changes designed to strengthen federalcounterterrorism programs have long been sought by the Bushadministration and the Justice Department but have languished inCongress, in part because of opposition from civil liberties advocates. Justice Department spokesman Mark Corallo characterized themeasures as "common-sense reforms aimed at preventing terrorist attacks." "We are very pleased that the Congress agreed with us that despitehaving passed the Patriot Act right after 9/11, we still had work todo," Corallo said, referring to the anti-terrorism legislationapproved in October 2001. "We have to constantly look at the laws andlook at our vulnerabilities and make sure we are doing everything wecan within the law to protect the American people." But civil liberties advocates and some Democrats said the measureswould do little to protect the public while further erodingconstitutional protections for innocent people caught up ininvestigations. Critics also say the proposed changes were overshadowed by thedebate over other aspects of the bill, which puts in place manyintelligence agency reforms proposed by the independent commissionthat investigated the Sept. 11, 2001, attacks. Some Democrats say theyreluctantly approved the package because they favored the broaderintelligence changes. Sen. Russell Feingold (D-Wis.) said that while he voted for thebill because of its intelligence reforms, he opposed much of theexpansion of law enforcement power. Most of it was not part of theSept. 11 panel's recommendations. "I am troubled by some provisions that were added in conferencethat have nothing to do with reforming our intelligence network,"Feingold said. He later added: "This Justice Department has a recordof abusing its detention powers post-9/11 and of making terrorismallegations that turn out to have no merit." Charlie Mitchell, legislative counsel for the American CivilLiberties Union, said the law enforcement measures are "most troublingin terms of the trend they represent." He added: "They keep pushingand pushing without any attempt to review what they've done." Congressional aides said most of the law enforcement measures wereincluded as part of the original House proposal for intelligencereform, which also called for wide-ranging changes in border andimmigration policies. Although some of the most controversialprovisions were removed in House-Senate negotiations, several remainedin the bill. Some of the changes were originally part of a legislative draftdrawn up by Justice prosecutors in 2002 as a proposed expansion of theUSA Patriot Act, administration and congressional officials said. Thedraft, leaked to the media and dubbed "Patriot II" by critics, wasnever introduced as a bill in its entirety. But portions wereintroduced as stand-alone legislation. As with parts of the original Patriot Act, some of the new powerswould expire at the end of 2005 or 2006 unless Congress renewed them. One key change is a provision in the new intelligence package thattargets "lone wolf" terrorists not linked with established terroristgroups such as al Qaeda. In language similar to earlier Senatelegislation, the bill would allow the FBI to obtain secretsurveillance and search warrants of individuals without having to showa connection between the target of the warrant and a foreigngovernment or terrorist group. The provision is aimed squarely at avoiding the quandary FBIinvestigators faced in the weeks before the Sept. 11 attacks, whengovernment lawyers haggled over whether they could link ZacariasMoussaoui to a terrorist group and legally search his belongings.Moussaoui has since been charged in connection with the attacks. Officials said other parts of the bill are direct responses tosetbacks in the courts, where prosecutors have lost cases because ofdisputes over previous legislative language. For example, thelegislation tightens the definitions of material support to terroristsin response to California federal court rulings that found the statuteunderlying such cases to be unconstitutionally vague. Other provisions in the bill include: * Suspects in major terrorism crimes automatically would be deniedbail unless they show they are not a danger or a flight risk.Advocates say the provision is modeled on similar rules for certaindrug crimes, but Mitchell said it would increase the possibility ofindefinite detention in alleged terrorism cases. * Penalties would be increased for such crimes as harboringillegal immigrants, perpetrating a terrorist hoax, and possessingsmallpox, anti-aircraft missile systems and radiological "dirty"bombs. The measure also is more explicit than current statutes inmaking it illegal to attend military-style training camps run byterrorist groups. * Federal prosecutors would be allowed to share secret informationobtained by grand juries with states or foreign governments to protectagainst terrorist attacks. German authorities, among others, havecomplained about difficulties obtaining information from the FBI andother U.S. agencies about foreign terrorist suspects.
