washingtonpost.com
Measure Expands Police Powers
Long-Disputed Provisions Are in Intelligence Bill
By Dan Eggen
Washington Post Staff Writer
Friday, December 10, 2004; Page A01
The intelligence package that Congress approved this week includes a series of little-noticed measures that would broaden the government's power to conduct terrorism investigations, including provisions to loosen standards for FBI surveillance warrants and allow the Justice Department to more easily detain suspects without bail.
Other law-enforcement-related measures in the bill -- expected to be signed by President Bush next week -- include an expansion of the criteria that constitute "material support" to terrorist groups and the ability to share U.S. grand jury information with foreign governments in urgent terrorism cases.
These and other changes designed to strengthen federal counterterrorism programs have long been sought by the Bush administration and the Justice Department but have languished in Congress, in part because of opposition from civil liberties advocates.
Justice Department spokesman Mark Corallo characterized the measures as "common-sense reforms aimed at preventing terrorist attacks."
"We are very pleased that the Congress agreed with us that despite having passed the Patriot Act right after 9/11, we still had work to do," Corallo said, referring to the anti-terrorism legislation approved in October 2001. "We have to constantly look at the laws and look at our vulnerabilities and make sure we are doing everything we can within the law to protect the American people."
But civil liberties advocates and some Democrats said the measures would do little to protect the public while further eroding constitutional protections for innocent people caught up in investigations.
Critics also say the proposed changes were overshadowed by the debate over other aspects of the bill, which puts in place many intelligence agency reforms proposed by the independent commission that investigated the Sept. 11, 2001, attacks. Some Democrats say they reluctantly approved the package because they favored the broader intelligence changes.
Sen. Russell Feingold (D-Wis.) said that while he voted for the bill because of its intelligence reforms, he opposed much of the expansion of law enforcement power. Most of it was not part of the Sept. 11 panel's recommendations.
"I am troubled by some provisions that were added in conference that have nothing to do with reforming our intelligence network," Feingold said. He later added: "This Justice Department has a record of abusing its detention powers post-9/11 and of making terrorism allegations that turn out to have no merit."
Charlie Mitchell, legislative counsel for the American Civil Liberties Union, said the law enforcement measures are "most troubling in terms of the trend they represent." He added: "They keep pushing and pushing without any attempt to review what they've done."
Congressional aides said most of the law enforcement measures were included as part of the original House proposal for intelligence reform, which also called for wide-ranging changes in border and immigration policies. Although some of the most controversial provisions were removed in House-Senate negotiations, several remained in the bill.
Some of the changes were originally part of a legislative draft drawn up by Justice prosecutors in 2002 as a proposed expansion of the USA Patriot Act, administration and congressional officials said. The draft, leaked to the media and dubbed "Patriot II" by critics, was never introduced as a bill in its entirety. But portions were introduced as stand-alone legislation.
As with parts of the original Patriot Act, some of the new powers would expire at the end of 2005 or 2006 unless Congress renewed them.
One key change is a provision in the new intelligence package that targets "lone wolf" terrorists not linked with established terrorist groups such as al Qaeda. In language similar to earlier Senate legislation, the bill would allow the FBI to obtain secret surveillance and search warrants of individuals without having to show a connection between the target of the warrant and a foreign government or terrorist group.
The provision is aimed squarely at avoiding the quandary FBI investigators faced in the weeks before the Sept. 11 attacks, when government lawyers haggled over whether they could link Zacarias Moussaoui 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 to setbacks in the courts, where prosecutors have lost cases because of disputes over previous legislative language. For example, the legislation tightens the definitions of material support to terrorists in response to California federal court rulings that found the statute underlying such cases to be unconstitutionally vague.
Other provisions in the bill include:
• Suspects in major terrorism crimes automatically would be denied bail unless they show they are not a danger or a flight risk. Advocates say the provision is modeled on similar rules for certain drug crimes, but Mitchell said it would increase the possibility of indefinite detention in alleged terrorism cases.
• Penalties would be increased for such crimes as harboring illegal immigrants, perpetrating a terrorist hoax, and possessing smallpox, anti-aircraft missile systems and radiological "dirty" bombs. The measure also is more explicit than current statutes in making it illegal to attend military-style training camps run by terrorist groups.
• Federal prosecutors would be allowed to share secret information obtained by grand juries with states or foreign governments to protect against terrorist attacks. German authorities, among others, have complained about difficulties obtaining information from the FBI and other U.S. agencies about foreign terrorist suspects.
Research editor Lucy Shackelford contributed to this report.