Senate Democrats, White House Reach a Deal on Anti-Terror Bill
U.S. Ability to Wiretap, Monitor E-Mail Would Be Enhanced
By John Lancaster
Washington Post Staff Writer
Thursday, October 4, 2001; Page A21
Ending days of tense
negotiations, Senate Democrats and the Bush administration reached
agreement last night on a wide-ranging anti-terrorism bill. The
breakthrough came after heavy pressure from Attorney General John D.
Ashcroft, who has called the legislation vital to preventing another
would significantly enhance the ability of law enforcement and
intelligence agencies to wiretap phones, monitor Internet
communications and share information among themselves -- in the last
case without court oversight.
But the agreement reached last night toned down an
administration proposal that would have permitted the indefinite
jailing of noncitizens suspected of terrorist offenses. Instead, it
adopts language negotiated in the House that would limit the detention
of such suspects to seven days, after which they would have to be
charged with criminal or immigration offenses or released, according to
Senate sources. They could still be held indefinitely under certain
narrow circumstances, however.
Senate Judiciary Committee Chairman Patrick J. Leahy
(D-Vt.) said in a statement issued at 9:30 p.m.: "These have been
complex and difficult negotiations, but after much hard effort we have
completed work on this bipartisan agreement."
Also last night, the House Judiciary Committee passed its
own version of the legislation -- the product of bipartisan
negotiations that ended Monday -- on a vote of 36 to 0. The full House
is slated to vote on the measure early next week, and the Senate is
likely to do so as well.
The Senate legislation closely tracks the House bill in
most respects, but some differences remain to be worked out in
Besides the immigration provision, Leahy and other
Democrats have been at odds with the Justice Department on several key
provisions of the administration bill, including one that would permit
law enforcement and intelligence agencies to share wiretap and grand
jury information in the absence of a court order. Under the agreement
reached last night, the administration partly addressed Leahy's
concerns about the inappropriate use of such material by agreeing to
limit its distribution to officials with an explicit need for the
information, Senate sources said.
But the administration "flatly refused" to accept Leahy's
proposal to require that a judge approve the sharing of such
information either before or after it occurs, according to a
participant in the talks.
Another point of contention centered on the Foreign
Intelligence Surveillance Act, which permits the use of wiretaps in
intelligence cases under more relaxed legal standards than those that
apply to criminal investigations. The law currently says such wiretaps
can be used only in cases where intelligence-gathering is the primary
purpose. The administration wanted to permit the use of these wiretaps
in cases where intelligence gathering is "a purpose," arguing that
criminal and intelligence matters sometimes overlap.
Leahy and his staff, however, feared that such language
could lead to abuses by law enforcement agencies seeking a less
stringent standard under which to carry out surveillance in criminal
cases as well as those involving terrorism. According to someone with
knowledge of the discussions, Leahy convinced Ashcroft that the
administration proposal could render the entire law unconstitutional.
They worked out a compromise stipulating -- as in the House bill --
that intelligence-gathering constitutes "a significant purpose" of
surveillance carried out under the act.
Democrats also sparred with the administration over its
proposal to expand the authority that law enforcement agencies have to
seek phone records of terrorist suspects. The administration argued
that such orders should also apply to Internet communications, such as
e-mail, and cover multiple jurisdictions. Democrats accepted the idea
in principle but expressed concern that the provision could also permit
access to the content of e-mail, opening the door to potential abuse.
The compromise stated that content could not be retrieved under such
"pen register" orders.
The agreement was reached after days of talks among
Leahy's staff and that of Sen. Orrin G. Hatch (R-Utah), the ranking
minority member on the judiciary panel, as well as officials from the
White House and Justice Department. The talks hit a snag Tuesday when
Ashcroft blamed Senate Democrats for unnecessary delays and Leahy
accused White House officials of reneging on earlier agreements.
The rapid pace of the legislation through Congress has
alarmed some civil liberties advocates, who suggest that the
administration is bullying lawmakers to overlook constitutional issues
that merit greater scrutiny.
"People are being told that if they do not sign onto this
bill they will be blamed for the next terrorist act," said Jerry
Berman, director of the Center for Democracy and Technology, which
objects to some of the bill's provisions for enhancing police powers to
conduct electronic surveillance. "People are being coerced."
Lawmakers say they are taking care to protect civil
liberties even as they acknowledge the urgency of expanding police
powers to deal with what Ashcroft has described as the "clear and
present danger" of another terrorist attack. They also are moving
quickly to strengthen money-laundering laws aimed at breaking up
terrorist financial networks.
"There is a good deal of movement . . . and I'm hopeful
that both the counterterrorism bill and the banking money-laundering
bill can be taken up, hopefully simultaneously, next week," Senate
Majority Leader Thomas A. Daschle (D-S.D.) said yesterday. To
streamline the process, Daschle said he would like to skip the normal
step of submitting the bill to a committee vote and bring it straight
to the Senate floor if possible.
Members of the House committee did not seem inclined last
night to make major changes to the compromise bill. But they also aired
a fair amount of criticism, some of which committee Chairman F. James
Sensenbrenner Jr. (R-Wis.) said he would consider in proposing changes
on the House floor.
© 2001 The Washington Post Company