The digital wiretapping law is a profoundly radical measure whose logic it appears difficult to restrain. If it is all right to require telephone companies to change how they build the telephone system so that the government can listen in (with a court order), why not have all telephones equipped with microphones since more conspiracies are planned in rooms than on the phone? Or, the government could require the builders of apartment buildings and houses to install microphones in the walls. If the government promises that it would not turn on the microphones except with a court order, is there really any privacy problem? The ACLU believes there is, and that problem exists for digital telephony as well. Digital wiretapping was a bad big-government mistake of the last Congress, and the mistake should not be repeated by this Congress.

IV. Repeal of first amendment protections in 18 U.S.C. sec. 2339A

Both S. 761, the Clinton Administration's Omnibus Counter-Terrorism Act, and S. 735, the Dole-Hatch Comprehensive Terrorism Protection Act, contain a dangerous and unwarranted provision that repeals important First Amendment protections for political, religious, and ideological activities enacted last year as part of the Violent Crime Control and Law Enforcement Act of 1994. Moreover, both provisions are drafted so as not to reveal their true purpose, thus constituting a "stealth" attack on First Amendment rights.

The provisions at issue are Section 402 of S. 735 and Section 601 of S. 761. Both provisions would retroactively amend 18 U.S.C. sec. 2339A, a statute enacted last year which makes it unlawful to provide material support for certain criminal "terrorist” activity. As enacted last year, section 2339A contained important protections to distinguish between criminal support for terrorism and First Amendment protected support for the nonviolent goals of ideological groups. Sections 402 and 601 would repeal the protections for First Amendment activity in Section 2339A.

Specifically, Section 2339A contains two important protections for constitutionally protected activities. First, section 2339A provides that a domestic investigation under this section may be initiated or continued only when facts reasonably indicate that an individual or group "knowingly or intentionally engages, has engaged, or is about to engage in the violation of this or any other Federal criminal law," thus prohibiting the investigation of a person for his unwitting participation in a group some of the members of which are engaged in unlawful activities. In addition, section 2339A expressly exempts First Amendment protected activities:

An investigation may not be initiated or continued under this section based on activities protected by the First Amendment to the Constitution, including expressions of support or the provision of financial support for the nonviolent political, religious, philosophical, or ideological goals or beliefs of any person or group.

In many ways, this statute stands as a model of the careful lines that must be drawn between prescribable support for terrorism on the one hand and protected support for political advocacy on the other. To vote in favor of repeal of the protections cited above would be to vote against the First Amendment. Yet both the Administration and the Dole-Hatch alternative now seek to repeal both of these limitations on investigations of ideological activity, and to make that repeal retroactive to the date of enactment. We urge members of Congress to reject these provisions.

CONCLUSION

The American Civil Liberties Union urges both the Congress and the Administration to resist the temptation to use the tragedy of Oklahoma City as a smokescreen behind which to enact legislation that is in fact both unrelated to Oklahoma City and anti-civil-liberties. We urge this Committee, first to take the time to reflect carefully on these issues and to legislate only after more time has passed for dispassionate assessment of what is, and what is not, genuinely needed. We further urge this Committee to reject any broadening of electronic surveillance and intelligence-gathering authority.

The CHAIRMAN. We will keep the record open until tomorrow evening-well, we will keep the record open until this evening with regard to any written questions that any members of this committee or all members of this committee would like to submit, and

then hopefully we will have the answers back before tomorrow evening.

So, with that, we have no choice but to recess until further notice. Thank you.

[Whereupon, at 2:18 p.m., the committee was adjourned.]

APPENDIX

QUESTIONS AND ANSWERS

APRIL 27, 1995

RESPONSES OF JAMIE S. GORELICK TO QUESTIONS SUBMITTED BY

SENATOR ORRIN G. HATCH

Question. In light of recent events, does the Department believe that the Attorney General's Guidelines provide the FBI the proper degree of latitude to investigate groups suspected of planning terrorist activities? If not, what modifications are the Attorney General considering?

Response. We are not considering any modifications to the Guidelines. The Department of Justice believes that the Guidelines provide sufficient authority to undertake preliminary inquiries or investigations before a crime has taken place, and to conduct domestic terrorism investigations.

Beginning in later 1994, at the direction of the Attorney General, the Criminal Division of the Department of Justice and the FBI conducted a joint review of the Guidelines. That review concluded that the Guidelines establish an effective framework for investigating domestic terrorists, and that steps should be taken to ensure that FBI Field Offices are aware of the full scope of the Guidelines.

The stated intention of Attorney General Smith's 1983 revisions to the Guidelines was "to eliminate any perception that actual or imminent commission of a violent crime is a prerequisite to investigations." Department of Justice Press Release, 3/7/83, at 5. As the Guidelines themselves state, when "statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm." Guidelines. §I (emphasis added).

Moreover, the Smith Guidelines were intended to make clear that if information received by the FBI falls short of the "reasonable indication" necessary to open a full domestic terrorist intelligence investigation, "yet still calls for further checking, agents can proceed under the existing preliminary inquiry' rules of the General Crimes portion of the combined guidelines." Department of Justice Press Release, 3/7/83, at 5. See Guidelines § III.B.1.b.

To be sure, during his testimony before the Senate Judiciary Committee, FBI Director Freeh made clear that, at times over the past 20 years, the FBI has been reluctant to initiate intelligence investigations in areas that implicate First Amendment concerns. He explained that this reluctance was in part a reaction to the criticism the FBI had received in connection with past domestic surveillance investigations.

To address this, the Department and FBI Headquarters have prepared written advice for FBI Field Offices that is intended to remind agents of the intent of the Guidelines, and of the type and scope of investigations that the Guidelines permit. Question. The President has proposed that a Domestic Counterterrorism Center be established, headed by the FBI. How does the Department envision this Center working? Will it be responsible for coordinating all government counterterrorism policy? and why will it be limited to only domestic terrorism?

Response. We support the concept of an FBI Counterterrorism Center to better manage and analyze intelligence collected both here and abroad. Such analysis is needed to support our ongoing domestic lead agency efforts to prevent/respond to acts of terrorism within the United States and overseas. It is the FBI's view that extensive interaction with other Federal, State, and Local law enforcement agencies throughout the U.S. is needed, particularly in the area of indigenous terrorist organizations. On the international terrorism side, full participation of the U.S. intel(175)

ligence community is essential so that the FBI has a complete picture of the activities of transnational groups which threaten this country. The Intelligence Community's Counterterrorist Center intends to be represented at a senior level at the FBI's Domestic Center and will continue to share with all appropriate agencies intelligence that comes to hand involving possible terrorist threats to United States persons or facilities.

Question. The President's counterterrorism initiative calls for a terrorism threat assessment of every federal facility in the country within the next sixty days. How is this assessment proceeding, and do you anticipate that any legislation will be needed to implement the findings of that assessment?

Response. The Attorney General was directed by the President to review security procedures at all federal buildings. As a result, a committee was established comprising security experts from the U.S. Marshals Service, FBI, GSA, State Department and Defense Department. That committee has now completed its report which has been made available to all congressional offices.

Question. What does the Department of Justice believe is the most critical element needed to enhance the federal government's counterterrorism efforts?

Response. The Department's counterterrorism efforts address both international terrorism and domestic terrorism, and involve a range of objectives which includes prevention and punishment. As a result, no one element holds the key to the Department's effective fulfillment of its responsibilities relating to terrorism. Rather, the key lies in having available a full range of investigative procedures and substantive offenses, as well as the necessary resources to utilize those tools effectively. S. 761 represents an effort by the Administration to augment existing law to ensure that the necessary tools are, in fact, available. Accordingly, we believe that the most critical element to the enhancement of the government's counterterrorism efforts is the passage of legislation of the type proposed in S. 761.

RESPONSES OF JAMIE S. GORELICK TO QUESTIONS SUBMITTED BY
SENATOR PATRICK J. LEAHY

Question. To date, how much money has been frozen or blocked as a result of the President's January 25, 1995 Executive order prohibiting_transactions with terrorists who threaten to disrupt the Middle East peace process?

Response. We have consulted with the Office of Foreign Assets Control of the Department of the Treasury and been advised that to date several hundred thousand dollars have been frozen or blocked.

Question. Under the Attorney General's guidelines for investigating domestic security/terrorist groups, the FBI may conduct preliminary investigations based upon information or allegations found in public records that a particular group advocates violence. (A) What modifications are you considering to these guidelines? (B) Do the current guidelines hinder the FBI in their ability to undertake investigations before a crime has taken place? If so, could you explain how? (C) Could you explain what additional leeway in conducting domestic security/terrorism investigations the FBI needs and why?

Response. We are not considering any modifications to the Guidelines. The Department of Justice believes that the Guidelines provide sufficient authority to undertake preliminary inquiries or investigations before a crime has taken place, and to conduct domestic terrorism investigations.

Beginning in late 1994, at the direction of the Attorney General, the Criminal Division of the Department of Justice and the FBI conducted a joint review of the Guidelines. That review concluded that the Guidelines establish an effective framework for investigating domestic terrorists, and that steps should be taken to ensure that FBI Field Offices are aware of the full scope of the Guidelines.

The stated intention of Attorney General Smith's 1983 revisions to the Guidelines was "to eliminate any perception that actual or imminent commission of a violent crime is a prerequisite to investigation." Department of Justice Press Release, 3/7/ 83, at 5. As the Guidelines themselves state, when "statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm." Guidelines, §I (emphasis added).

Moreover, the Smith Guidelines were intended to make clear that if information received by the FBI falls short of the "reasonable indication" necessary to open a full domestic terrorist intelligence investigation, "yet still calls for further checking, agents can proceed under the existing preliminary inquiry' rules of the General Crimes portion of the combined guidelines.” Department of Justice Press Release, 3/7/83, at 5. See Guidelines § III.B.1.b.