target of the electronic bug appeared intent on thwarting interception. The ACLU believes that this is a constitutional floor; without a showing of intent to thwart, a surveillance order lacking specifics about the "place to be searched"-i.e., the phone to be tapped-would be constitutionally defective.

We hasten to add, however, that the current standard is not burdensome to investigating authorities. Intent to thwart can be inferred from conduct, so that a person acting in a manner that has the effect of thwarting interception will likely be found to have that intent. To date, the Administration has brought forth no evidence that a real problem exists that requires this dramatic, and potentially unconstitutional, fix.

ADDITIONAL SUBMISSIONS FOR THE RECORD

APRIL 27, 1995

PREPARED STATEMENT OF THE AMERICAN SOCIETY FOR INDUSTRIAL SECURITY

Mr. Chairman, on behalf of the 25,000 security management professionals who are members of the American Society for Industrial Security (ASIS), its Board of Directors and professional staff, we wish to thank you for providing us the opportunity to submit this testimony for your Committee's hearing today on terrorism. And we want to extend our deepest sympathies to the victims of the tragedy in Oklahoma City, and to their families and friends as well.

Since 1955, ASIS has been the only professional society to provide a forum and educational programs for professionals involved in private security management. Today it is the largest international organization for security professionals. ASIS is dedicated to increasing their effectiveness by developing educational programs and materials which address broad security interests, such as the ASIS Annual Seminar and Exhibits, as well as specific security topic areas, such as terrorism. By providing its members and the security community with access to a full range of programs and services, and publishing the industry's major magazine, Security Management, ASIS leads the way for advances and improved security.

As a representative of private security professionals, many of whom have served in public sector law enforcement at the federal, state and local levels, we feel an obligation to speak about security in the private sector. The private sector, while not a direct target of the attack in Oklahoma City, not only is vastly larger than the federal government but has, in the past, been a prime target of the type of deranged and vicious assault, though less destructive, for which the Murrah Federal Building now has become a symbol.

We believe it is important to be mindful that, as we focus our attention on the issue of terrorism directed at government targets, the remaining areas become even more vulnerable to criminal activity. History has shown that, when public law enforcement is substantially increased in a given area, the criminal element moves onto other, less attended territory. We believe, therefore, it is critical that this Committee receive the insights and recommendations of both public sector law enforcement and private sector security.

Private sector security professionals have long been charged with responsibility for detection and prevention of all types of violence, including terrorism. Although the number of terrorist acts in the United States has been relatively small, a slight majority have been aimed at private sector targets. Of 57 terrorist acts in our nation between 1986 and 1993, 29 were directed a private sector targets, including: 19 at commercial establishments; six at educational institutions; two at entertainment establishments; and two at private residences.

But just as the threat of terrorism facing the private sector has been somewhat larger than that facing the public sector, private sector security is a much larger element of crime prevention and law enforcement than most Americans realize. To put the matter in perspective:

More than half of responses to crime come from private security.

The ratio of private security employees (1,883,000) to public law enforcement officers (684,000) is nearly three to one.

In response to increases in crime, the private security industry is growing at a rate nearly three times that of national employment generally.

Approximately $103 billion is spent on private security annually, as compared with $44 billion on public law enforcement.

Security professionals, both private and public, realize that threats of terrorism cannot be wholly eliminated. However, the safety of our country's citizens could be increased through long-term, continuous cooperation between public law enforcement and private security professionals. Private security often has the resources to focus on development of preventive measures that public law enforcement agencies are not afforded due to budgetary constraints and increased crime rates. Private security can be an invaluable resource for cooperative efforts with public law enforcement officials to prevent incidents, providing rapid access to additional experts and resources to assist in both preventing and solving crimes.

ASIS has 30 Standing Committees and Councils, whose primary task it is to provide a forum for the exchange of information specific to specialized security issues and functions. This includes the ASIS Standing Committee on Global Terrorism, Po

litical Instability and International Crime, comprised of long-time, highly-respected security professionals who have extensive expertise in international and domestic terrorism. They include many present and former members of public law enforcement organizations, such as the FBI, Secret Service and CIA.

The current membership of the Committee includes the Chief of the Counterterrorism Section of the FBI; the Assistant to the Secretary for International Terrorism, Department of Defense; the Director of the Diplomatic Security Service for the U.S. Department of State; and the First Deputy Commissioner of the New York City Police Department. Members from the private sector include those responsible for corporate security from leading, multinational corporations, such as USX Corporation, Johnson & Johnson, British Airways, R.J. Reynolds Tobacco Company, and other major businesses and institutions.

This ASIS Standing Committee is responsible for conducting an Annual Government/Industry Conference on Terrorism, the 13th of which was held this year, which brings together the private security practitioners, State Department and other federal law enforcement staffs, and other terrorism experts, to discuss and analyze the latest domestic and international threats. In addition, our Committee is responsible for educational sessions providing updates and specific counterterrorism techniques which are presented every year at the ASIS Annual Seminar and Exhibits. This is the security industry's largest educational program and attracts more than 13,000 individuals from around the world.

ASIS members also work very closely with the Overseas Security Advisory Council (OSAC) during biennial meetings each year to discuss and analyze threats and preventive measures associated with recent developments in the criminal world of terrorist activities.

ASIS will hold a special meeting on May 5, 1995 at its headquarters in Arlington, Virginia, to determine the most practical, comprehensive and effective approaches which can be taken to address the potential increase in the threat of domestic terrorism. The meeting will include the chairmen of the ASIS Standing Committees on Terrorism, Commercial Real Estate, and Crime/Loss Prevention, as well as other experts and members of the ASIS Board of Directors and professional staff. We hope to put together a comprehensive package of educational materials and programs, one of which will be an educational program to address Domestic Counterterrorism to be conducted in Washington, DC in July of this year.

The security profession, public and private, has in the past demonstrated an ability and willingness to act in concert-to exchange information, ideas and resources for the common protection of America's citizens. Such programs are found nationwide, but they are the exception rather than the rule. More should be done, certainly in the area of terrorism. We owe our citizens, and the victims of the Oklahoma City tragedy and other terrorist acts, no less.

Mr. Chairman, The American Society for Industrial Security urges you, the Members of your Committee, and the Congress to encourage and facilitate joint programs which will take advantage of the expertise and ability that are amply found in both sectors. Working together, federal law enforcement officials, state and local police agencies, and those responsible for crime prevention and law enforcement in our nation's corporations and other private institutions can bring to bear against the terrorist threat the full force of American experience, knowledge and practice in the security profession.

Thank you again for this opportunity to testify.

PREPARED STATEMENT OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, SUBMITTED BY GERALD GOLDSTEIN

On behalf of the National Association of Criminal Defense Lawyers (NACDL), I want to thank the Committee for this opportunity to offer the following written statement for the official record—regarding the Committee's April 27, 1995 general hearing on terrorism. NACDL respectfully urges the Committee to hold additional hearings as soon as possible specifically focused on S. 390 (the Clinton Administration's Omnibus Counterterrorism Act of 1995), Title VI of S. 3, and any other bill that may be introduced regarding terrorism, international or domestic.

Further, NACDL respectfully requests permission to offer both oral and written testimony at such an additional, necessary hearing on the above referenced sections of S. 3, S. 390 and any other bills on the subject of terrorism. NACDL submits that the view of its members-who have devoted their lives to representing persons accused of committing a crime-are imperative to gaining a true, full understanding of the dangers to the Republic inhering in these pieces of proposed legislation.

The members of NACDL are front-line defenders of the People's rights and liberties. NACDL represents the nation's criminal defense lawyers, and in turn: People accused of having committed a crime; and our constitutional democracy itself. NACDL's 8,700 direct members and over 20,000 affiliated members of 70 State and local affiliates include private criminal defense lawyers, public defenders, and law professors who have devoted their lives to ensuring that others do not wrongfully lose theirs. NACDL members are the legal advisors and advocates who represent the people whose rights and liberties will be trampled by enactment of S. 390 and similar terrorism proposals. Thus, NACDL respectfully submits that its members' experienced insights are critically important to full understanding of these proposals and that these insights cannot be gleaned from full-time academics, agency representatives, or others who might also testify about such proposals.

I. "TOUGH ON TERRORISM”

The members of NACDL, like all Americans, mourn the loss of life caused by last week's Oklahoma City bombing. In fact, many of our members have been quite personally affected by this horrible event. The Federal Public Defender's office in Oklahoma City was in the federal building that was bombed, and several persons there have been unreachable since the bombing.1

The membership of NACDL is also quite mindful of the fact that, especially in the aftermath of the horrible bombing in Oklahoma City on April 19, 1995, being tough on terrorism is not exactly a difficult stance for one to take, and yet, it is a stance with its own potentially devastating consequences for our country:

[Precisely because the label [of "terrorist”] is so powerful, it invites overreaction. Just as the Communist threat led to the blacklisting, imprisonment, and deportation of countless innocent persons for their lawful political activities during the Cold War, so * * * recent measures against terrorism threaten to throw innocent citizens in jail and innocent immigrants out of the country simply for their political associations.2

NACDL would also respectfully remind the Committee of the similarities between this bill and the infamous Japanese-American internment horror of Korematsu (which most Americans recall now with shame, but at least a somewhat reassuring assumption that we have learned our lesson-that such a lapse in our nation's con

1 See e.g., Statement of Former NACDL President Ephraim Margolin, quoted in Michael Taylor, "U.S. Reaction to Terror Bombing Worries Civil Liberties Experts," San Francisco Chronicle, April 22, 1995, at A12:

There is no (law enforcement) tool that could be made available to everyone to make sure all people are protected. *** But there are measures we now have that are sufficient. There is such a panoply of electronic surveillance that is available when justified that no additional measures would seem justified. * * * It would be unfortunate if our response becomes similar to those who are attacking us. ** * I've done some cases in Oklahoma City, and I have several friends in the public defender's office (in the federal building there). * * * I've been unable to reach them.

2 Professor (and Chair, NACDL Supreme Court Argument Preparation Committee) David Cole, "The Omnibus Counter-Civil Liberties Act," Legal Times, March 13, 1995, at 31. See also Professor David Cole, "Counterterrorism's Dirty Secrets," Legal Times, April 17, 1995, at 23 (hereinafter, Cole, "Dirty Secrets").

stitutional character could not happen again); 3 and the Star Chamber so anathema to our Founders.4

Both S. 390 and Title VI of S. 3 represent massive assaults on our Bill of Rights, and indeed, would inflict more damage on constitutionally protected rights and liberties than any legislation in recent memory. These bills trash such cherished individual rights and liberties as the presumption of innocence, freedom of lawful speech and association, equal protection of the laws, the right to due process, the right to reasonable bail, the right to confront the "evidence" against you, and the right to be free from unreasonable searches and seizures. These bills represent nothing short of proposals for concentrating absolute power over the People's rights and liberties in the hands and discretion of the President. As Lord Acton put it long ago, and as the Founders understood and tried to systemically guard against: power corrupts and absolute power corrupts absolutely.

For example, these bills propose that the President's mere suspicion of one's involvement with even the lawful activities of an organization that has members who may resort to terrorism (e.g., Mr. Mandela's African National Congress in South Africa or Mr. Adams's Sinn Fein in Ireland) would be sufficient to allow the executive branch of government to immediately “detain” an alien with no right to a release hearing and no chance of bail. Permanent resident aliens would get the chance to get out of jail on bail, but the government would be able to use "secret evidence" against them in any release hearing, and these persons would also have to contend with the burden of proof being shifted to their shoulders; they would have to prove that there was no basis for their detention, rather than have the government having to prove that there is such a basis.5

These legislative proposals also go well beyond even H.R. 666 (a bill opposed by Representative Charles Schumer, the chief sponsor of S. 390's House companion, for example) permitting law enforcement agencies to conduct criminal investigations into “material support" to alleged terrorists with no requirement for even reasonable suspicion that the target of such an investigation knowingly had or would violate any federal criminal law. S. 390 would also completely bar motions to suppress information obtained illegally in cases involving certain categories of persons, on "secrecy" grounds. History tells us we should know better.6

3 Korematsu v. United States, 323 U.S. 214 (1944). But please note that even in the now-infamous Korematsu set of cases, the government's placement of Japanese-Americans in concentration camps, based on their ancestry, and solely because of their ancestry, without evidence or inquiry concerning the individuals' loyalty and good disposition towards the United States, was even then upheld by the Court because of wartime, "military necessity" (irrespective of the actual lack of a martial law declaration). And no such wartime, “military necessity" even arguably exists relative to S. 390 and its kind. Certainly any such "analogous" claim must be deemed to be as dubious as the government's claims in Korematsu were later revealed to have been. See e.g., Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (federal district court grant of writ of coram nobis, based on findings that the government deliberately omitted relevant information and provided misleading information in papers submitted to the Supreme Court of the United States concerning whether military orders at issue were reasonably related to the security and defense of the nation and to the prosecution of the war); Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986) (federal appeals court holding that the government's fraudulent concealment of facts undermining its claims of military necessity tolled the applicable statute of limitations on at least certain claims by a group of Japanese-American victims of the evacuation in their suit to recover damages for injuries arising out of their wartime internment), vacated on other (Federal Circuit appellate jurisdiction) grounds, 482 U.S. 64 (1987). See generally Professors Peter M. Shane & Harold H. Bruff, The Law of Presidential Power 694-697 (1988).

4 The Star Chamber: [t]hat curious institution, which flourished in the late 16th and 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law traditions. For those reasons, and because it specialized in trying "political" defenses, the Star Chamber has for centuries symbolized disregard of basic individual rights.

Faretta v. California, 422 U.S. 806, 821 (1975). See also Professor Lawrence Friedman, A History of American Law 23 (1973) (hereinafter Friedman, History):

The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it-a reminder that high state policy could not safely be entrusted to a system so chancy as English law.*

See generally also 5 W. Holdsworth, A History of English Law 155-214 (1927).

5 See S. 390, section 201, subsection 502(b).

6 See e.g., Anthony Summers, Official and Confidential: The Secret Life of J. Edgar Hoover 112-116 (1993):

In May 1940, [President Franklin D.] Roosevelt gave the go-ahead for use of that vital tool of any secret police, the telephone tap. On its face, Edgar's track record on wiretapping was entirely respectable. The Bureau's first manual, issued in 1928, said flatly that tapping was "imContinued