1995 Congressional Hearings
Intelligence and Security



                     JOHN H. SHENEFIELD








                          H.R. 1710

                        PRESENTED ON

                        JUNE 13, 1995


     Mr. Chairman and Members of the Committee, I am pleased

to testify in connection with the Comprehensive Anti

terrorism Act of 1995, H.R. 1710.

     I serve as Chairman of the American Bar Association's

Standing Committee on Law and National Security, which is

composed of eleven senior lawyers with expertise and

experience in dealing with the legal aspects of national

security issues. The Standing Committee sees its role as

educating America's lawyers on the importance of the rule of

law in the national security arena. This testimony, however,

is not delivered on behalf of the American Bar Association

and does not purport to represent its official policy or

position. Nor can it represent in any official way the

position of the Standing Committee. Instead the testimony

does reflect a rough informal consensus of members of the

Standing Committee, which has been analyzing several legal

issues related to terrorism in recent years, and seeks to

make available to the Congress some of the lessons distilled

from that analysis.

     In general, I support the Comprehensive Anti terrorism

Act of 1995. I believe it strikes an appropriate balance

between the prevention of terrorism and the efficient

apprehension and conviction of terrorists, on the one hand,

and the protection of civil liberties on the other. The bill

undertakes to resolve some extremely vexing issues, and it

does so in an admittedly aggressive way. I applaud the

determination of

the Executive Branch and the Congress to bring the full

weight of federal law enforcement, within constitutional

limitations, to bear on terrorism.

     At the outset, let me suggest the appropriate

analytical context within which to consider the proposals

contained in H.R. 1710, or indeed any other proposals. First

and foremost, as Americans we live in an open society

undergirded by the rule of law. In seeking to combat

terrorism, we are defending that way of life -- it is what

we are fighting for.

     Therefore, in seeking to deal effectively with the

problems of terrorism, domestic and international, we must

be vigilant to preserve and maintain the openness of our

society and the legality of our counter terrorism policies

and practices. Our citizens must be clear on this essential

point; so also our security officials.

     How then to deal with the immense variation in

terrorist activity? How best to develop a sufficiently

flexible response so that truly serious threats can be

investigated without impinging unduly on civil liberties? To

these questions, there are no simple answers.

     The key concepts are balance and proportion. Not all

terrorists are created equal. Not all terrorist acts are

equally threatening. Yet some terrorism can strike at the

very heart of an open society. Government must therefore

have at hand

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capabilities to deal with conspiracies of the most dreadful

import, where loss of time or investigative effectiveness

risks catastrophe. At the same time, not all investigative

powers need to be used in every case. Certain of the most

intrusive techniques should be thought of, and regulated

within the government, as techniques of last resort.

     In part, the judgment of balance and proportionality is

a legislative one. Powers that can never be used in our

society should never be legislated into existence. That is

not, to state the obvious, a justification for failing to

provide society -- and its government -- with the ability to

use powers in times of emergency or need. The investigative

tool, kept in reserve, is nevertheless available for use

when needed. To put it beyond use, even when needed, would

be both unwise and immoral.

     But the judgment on balance and proportionality is also

a question for the Executive Branch, for the implementers of

the policy, for the security officials. It is not common in

Washington in these days to be reassured by such a

statement, and yet it must be the case. Our government, and

especially our law enforcement agencies, and most especially

the Department of Justice, are operated by men and women of

great competence and dedication who work long hours, mostly

without recognition, to protect and defend our open society

under the rule of law. Until the contrary is demonstrated as

to any individual, I strongly believe that a presumption of

integrity and legality should be accorded our law

enforcement community. And it is that presumption that must

ultimately guide the members of Congress in assessing the

proposals in this bill.

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     That is not to say that mistakes will not be made. Of

course they will -- that is the price we pay for living in

the real world. But they will certainly be infrequent, and

when they are made, they are more often than not failures of

the system rather than examples of the system gone bad.

     The overheated rhetoric about government conspiracies

to deprive citizens of their rights is wrong. The notion of

investigative agencies straining at the leash to break the

law is wrong. The fear that government officials, when given

great power, will always or sometimes or ever abuse that

power is mostly wrong. We must always be alert to that

possibility; we cannot be immobilized by it.

     And so, the question to ask of any proposal in H.R.

1710 is whether on balance it is proportional to the danger

that it targets -- flexible enough to be available when

necessary, under appropriate safeguards and regulation. And

what are the ways to ensure that these great powers are

actually used only in the appropriate cases?

I. Substantive Criminal Law Enhancements (Title I)

     The purpose of this title is to provide a surer and

more comprehensive basis for the response of federal law

enforcement to acts of international terrorism both within

the United States and overseas. It establishes, really for

the first time, a coherent statutory framework that would

permit the federal government to attack complicity in

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acts of international terrorism across a broad front of

jurisdictional rationales, regardless of the sit us of the

terrorist acts or the nationality of the offender. It also

enhances our ability to deal with extra territorial

terrorist acts.

     Section 102 prohibits the provision of support and

resources to terrorist organizations so designated by the

President of the United States, pursuant to an amendment to

the Immigration and Nationality Act found in proposed

section 611. Unlike some earlier versions (e.g., H.R. 896),

H.R. 1710 makes no exception for funding intended

exclusively for religious, charitable, literary or

educational purposes. No doubt the problems of policing and

enforcement inherent in any such licensing regime persuaded

the drafters that it was essentially unworkable.

Nevertheless, the Committee might be well advised to

consider whether inclusion of some such exception and

regulation, which might bear some resemblance to that of the

International Emergency Economic Powers Act, 50 U.S.C. 

1701-06, together with certain legislative findings to

undergird the reach of the prohibition, would improve the

ability of the statute to withstand constitutional challenge

without detracting from its effectiveness. If the Committee

were so minded, we would suggest a number of technical

changes to the versions incorporated in earlier statutes,

and would be happy to work with the Committee's staff to

produce the optimal statutory language. I am confident that

any such provision will be upheld by the courts on national

security grounds and as within the foreign affairs powers of

the Executive Branch. See, e.g., Dames & Moore v. Regan, 453

U.S. 654 (1981).

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     Section 104 creates a new violation of federal law,

"Acts of Terrorism Transcending National Boundaries." It is

important that the law contain the most complete exercise of

federal jurisdiction possible in connection with terrorist

acts within the United States, as well as establish

stringent penalties. Subsection (b) contains a catalog of

jurisdictional bases currently approved by federal courts.

     Subsection (d) provides an important limitation on

prosecution, and requires the critical exercise of judgment

as to balance and proportionality. Under this provision, no

indictment or information may be sought unless the Attorney

General, or the highest ranking subordinate of the Attorney

General with responsibility for criminal prosecutions, has

made a written certification that the offense, or any act of

preparation or concealment, is terrorism as defined in

proposed section 315. The fixing of individual

responsibility for the certification, as is true in other

statutory contexts, is an effective method of ensuring the

integrity of the implementation of the statute's clear

intention that section 104 is used only to prosecute

terrorism. This is quintessentially the kind of judgment we

expect our highest federal law enforcement officials to

make. The certification process and retrospective

congressional oversight can combine to ensure that such

judgments are carefully and correctly made.

     Proposed section 105 ("Conspiracy to Harm People and

Property Overseas") would substantially expand the very

limited federal jurisdiction that now exists

in section 956 of Title 18 to prosecute conspiracies carried

out in part within the United

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States to commit terrorist acts overseas. Section 105

complements section 104, dealing with international

terrorist acts within the United States, so that federal

prosecutors have the flexibility and scope to investigate

and prosecute those who conspire to commit, as well as those

who actually commit, terrorist acts both within the United

States and around the world. The technical amendments of 

106-111 are wholly appropriate, as are the increased

penalties provided for in Title II.

II. Investigative Tools (Title III)

     Title III contains a number of enhancements to the

capability of federal law enforcement to investigate

terrorism or engage in foreign counterintelligence

investigations. Each of these provisions seems a sensible

but limited expansion of current authority. Each also

employs an implicit balance between the government's

investigative needs and the individual's right of privacy.

Running throughout is the requirement that responsible

officials exercise the critical judgment as to balance and


     Section 301 expands the federal authority to seek

court-ordered electronic surveillance in connection with

terrorism-related offenses. This section engages not just

the panoply of internal Justice Department regulation, but

also requires a 15-day report to the appropriate federal

judge. Wiretaps should of course be available in connection

with the most serious crimes, and there can be little doubt

that those added to 18 U.S.C.

                            - 7 -2516, which would include protection of U.S. officers and

employees, murder of foreign officials, presidential

assassination, terrorist acts abroad and within the United

States, fall within that category. It is hardly persuasive

to argue that existing authority is used infrequently;

indeed, that should be a basis of reassurance that

electronic surveillance is an investigative technique to be

used as a last resort.

     Section 308 sensibly expands the authority for

temporary emergency wiretaps in connection with crimes of

terrorism. Objection to this provision has been raised on

the ground that existing law, permitting emergency wiretaps

where the emergency involves immediate danger of death or

serious physical injury to any person, conspiratorial

activities threatening the national security interest, or

conspiratorial activities characteristic of organized crime,

already provides sufficient legal basis. But international

and domestic terrorism can take unforeseen forms with

unpredictable consequences, and may not easily fit existing

legal categories. The provision assumes that the Attorney

General has made a reasonable determination that an

intercept must be made before an order can be obtained in

the ordinary course, even with due diligence. This

provision, giving federal law enforcement flexibility in

exigent circumstances, seems particularly wise.

     Section 309 provides for expanded authority for

multi-point, or roving, wiretaps. Under current law, roving

wiretaps are permissible only upon a showing that the

subject's use of different telephones is intended to thwart

law enforcement

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investigations. The new provision removes that inefficient

requirement, and substitutes instead the more practical

requirement that senior law enforcement officials and the

judge to whom the application is made find that

specification of the telephone to be tapped is impractical,

the same standard that exists in current law for multi-point

listening devices.

     The fourth amendment requires that in its request for a

search warrant the government particularly describe the

premises to be searched. In the case of wiretaps,

traditionally the fourth amendment's particularity provision

has been construed to require the government to specify the

location of the telephone to be tapped, unless the special

finding of an attempt to evade can be made.

     In theory, removal of the special finding for oral

communications has the potential for giving inadequate

emphasis to the constitutional particularity requirement,

which is designed to avoid the surreptitious interception of

the telephone calls of wholly innocent people. As a matter

of practice, constant physical surveillance guarantees that

the subject of the investigation -- and no one else -- is

actually using the telephone to be tapped. As a practical

matter, therefore, the provision is constitutionally sound.

Nevertheless, to avoid any doubt and to align the statutory

provision more completely with actual practice, we suggest

the insertion of a standard requiring a very high degree of

probability that the subject is at the time using the

telephone to be tapped. As part of

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the legislative history, we would suggest that the current

practice of confirmation be cited as an example of adequate


     Title III also includes a variety of provisions

relating to foreign counterintelligence investigations.

There seems to be little reason why tools such as pen

register and trap and trace devices available to criminal

law enforcement should not be equally available to foreign

counterintelligence investigations. In addition, access to

certain consumer information, under proper safeguards,

should be eased. Section 303 and section 304 relating to

common carriers, public accommodation facilities, vehicle

rental facilities and the like seem to be sensible and

constructive expansions of foreign counterintelligence


     Much has been made of section 312's provision for

military assistance with respect to offenses involving

weapons of mass destruction. The controversy is largely

baseless, inasmuch as the assistance provided is of a purely

technical and logistical nature in circumstances where the

absence of such assistance could be catastrophic. To wall

off technical expertise possessed by one arm of the United

States government from its employment in a law enforcement

context by another branch of the United States government

seems perverse, particularly where the results of such

compartmentalization could be so dire.

                           - 10 - 

III. Immigration Law Improvements (Title VI)

     Title VI creates procedures for dealing with alien

terrorists under the immigration laws.

     Section 601 establishes special removal procedures for

alien terrorists. The provision is an eminently sensible

effort to deal with the problem of the need of the federal

government both to avail itself of sensitive classified

information in connection with alien terrorist removal

procedures and to avoid disclosing such information where

that would pose a risk to the national security of the

United States. The proposal utilizes a special court similar

to that recognized in the Foreign Intelligence Surveillance

Act context, and entrusts a specially appointed federal

district judge with the authority to police the process and

make the ultimate decision as to removal. Section 601

likewise provides for representation by counsel, who may

introduce evidence, examine witnesses, and procure the

attendance at the hearing of witnesses or the production of


     Classified information can be used, either in

connection with the application for the special removal

hearing or in connection with the substantive removal

decision itself. Section 601 in these circumstances

establishes special procedures to be employed to safeguard

especially sensitive classified information. Such

information is to be presented to the court ex parte and in

camera. In connection with the actual hearing, written

summaries of such classified information that do not pose a

risk to national

                           - 11 -

security are to be made. If no such summary is possible

without revealing enough to cause serious and irreparable

harm to the national security or death or serious bodily

injury to any person, the judge can permit the special

removal hearing to continue and can consider the classified

information in camera and ex parte even though it is not

supplied to the alien.

     H.R. 1710 improves on earlier versions in cases

involving lawful permanent aliens with a provision in

section 506(c) establishing special procedures for access to

classified information and challenges to the use of such

information by special attorneys with security clearances

retained precisely for such purposes. I suggest that a

useful addition to the procedure for removal proceedings in

other cases would be to establish a similar guardian ad

litem feature, pursuant to which a government lawyer,

separated from the hearing staff, would be statutorily

assigned the responsibility of assessing the items of

confidential information, helping the court to test their

sufficiency, and making appropriate arguments on behalf of

the alien.

     Sections 611, 612 and 613 that provide for special

treatment of alien terrorists are also commendable. In

general, the law should protect the United States from

having to open its borders to those who are members of

terrorist organizations that threaten the national security

of the United States.


                            * * *

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     The Comprehensive Anti terrorism Act of 1995 is a

measured step to provide the federal government, and in

particular the investigative and law enforcement agencies,

with adequate tools to deal with terrorist conduct. The

provisions are not excessive; they particularly do not

deserve the hysterical reaction of some critics that see in

them the destruction of civil liberties. In fact, the bill

is carefully designed to protect civil liberties as a

substantive matter. Internal departmental regulation and

congressional oversight can ensure that our society is

served by effective law enforcement and by the protection of

vital civil liberties.

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