Counterterrorism legislation in the wake of Oklahoma

Date: Thu, 27 Apr 1995 17:38:31 -0700
From: Phil Agre <pagre@weber.ucsd.edu>
To: rre@weber.ucsd.edu
Subject: CDT POLICY POST No.10 -- Administration Terrorism Proposal Unveiled

Date: Thu, 27 Apr 1995 14:36:58 -0400
From: jseiger@cdt.org (Jonah Seiger)
Subject: CDT POLICY POST No.10 -- Administration Terrorism Proposal Unveiled

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  **         **      **       ***               POLICY POST
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  **         **      **       ***               April 27, 1995
  **         **      **       ***               Number 10
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  CENTER FOR DEMOCRACY AND TECHNOLOGY
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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST 4/27/95                                      Number 10

CONTENTS: (1) Clinton Administration Outline of Counter
              Terrorism Initiative
          (2) Outline of Clinton Administration Counter Terrorism
              Initiative.
          (3) Communications Decency Act Update
          (4) About the Center for Democracy and Technology

This document may be re-distributed freely provided it remains in its
entirety.
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SUBJECT: Clinton Administration Announces Outline of Counter
         Terrorism Initiative.

The Clinton Administration today unveiled an outline of administration
proposals to combat foreign and domestic terrorism in the wake of the
Oklahoma City bombing. The outline is attached below.

These proposals on their face obviously raise civil liberties issues,
including government interference with privacy, free speech, free
association and Forth Amendment rights.. CDT is waiting for the
Administration to elaborate and provide concrete legislative proposals
so that we can assess the civil liberties ramifications.

The administration document is merely an outline, not specific legislation
or executive order. The administration is expected to produce a more formal
proposal in the coming weeks. These proposals are likely to supplement
the Omnibus Counter-Terrorism Act of 1995, (S. 390, HR 896). which is
currently pending before Congress.

CDT believes that there must be substantial open, public discussion of
these proposals and thier potential implications before any action is
taken.

We have set up the following URL's to provide information on the
counter-terrorism issue. Updates will be made as soon as more information
becomes available.

World-Wide-Web:

http://www.cdt.org/policy/terrorism/terrorism.html

ftp:

ftp://ftp.cdt.org/pub/cdt/policy/terrorism/


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Clinton Administration Counter Terrorism Initiative

I.      Actions Already Announced by the President

        (1) Pass the Omnibus Counter-Terrorism Act of 1995

        This bill would provide clear Federal criminal jurisdiction for any
international terrorist attack that might occur in the United States;
provide Federal criminal jurisdiction over terrorists who use the United
States as the place from which to plan terrorist attacks overseas; provide
a workable mechanism, utilizing United States District Judges appointed by
the Chief Justice, to deport expeditiously alien terrorists without risking
the disclosure of national security information or techniques; provide a
new mechanism for preventing fundraising in the United States that supports
international terrorist activities overseas; and would implement an
international treaty requiring the insertion of a chemical agent into
plastic explosives when manufactured to make them detectable.

        (2) Provide more tools to federal law enforcement agencies
          fighting terrorism

* AMEND THE FAIR CREDIT REPORTING ACT TO EASE ACCESS TO FINANCIAL AND
  CREDIT REPORTS IN ANTI-TERRORISM CASES. This legislation provides for
  disclosures by consumer reporting agencies to the FBI for
  counterintelligence and counterterrorism purposes. The FBI has no
  mechanism for obtaining credit reports for lead purposes in
  counterterrorism cases. These reports are available to used car
  dealers and other merchants. The FBI currently has authority under the
  Right to Financial Privacy Act of 1978 to obtain similar records
  pursuant to a "National Security Letter" signed by a high-ranking FBI
  official. the same procedures and safeguards would apply to credit
  records under this proposal.

* AMEND FEDERAL LAW TO ADOPT, IN NATIONAL SECURITY CASES THE STANDARD
  CURRENTLY USED IN OBTAINING A "PEN REGISTER" IN A ROUTINE CRIMINAL
  CASE. This proposal would extend the relaxed standard for obtaining
  "pen registers" and "trap and trace" device orders which already
  exists in routine criminal cases, to national security cases. A "pen
  register" is a device which records the number dialed on a telephone.
  A "trap and trace" devices is similar to "Caller ID," providing law
  enforcement with the telephone number from which a call originates.
  Neither "pen registers" nor "trap and trace" devices permit law
  enforcement to monitor actual conversations being conducted. the
  current, higher-than-regular standard impedes the ability of the FBI
  to obtain surveillance coverage of terrorists and spies.

* PASS LEGISLATION TO REQUIRE HOTEL/MOTEL AND COMMON CARRIERS TO PROVIDE
  RECORDS NECESSARY FOR FIGHTING TERRORISM. This proposal would require
  hotel/motel and common carriers such as airlines and bus companies to
  provide records to the FBI pursuant to authorized national security
  requests just as they must do now for virtually all state and local
  law enforcement. The FBI must now rely on the voluntary assistance of
  motel, hotel, and other innkeepers or common carriers regarding
  records of terrorists who may have stayed at the establishment or used
  the common carrier. The FBI has found that, while some of these
  entities voluntarily provide such information, an increasing number
  refuse, absent a court order, a subpoena, or other legal protection.
  In a counterterrorism case being conducted pursuant to the Attorney
  General's guidelines for FBI Foreign Intelligence Collection and
  Foreign Counterintelligence Investigations, there is no legal
  mechanism, e.g. subpoena, available to obtain these records.

* FULLY FUND THE FBI'S "DIGITAL TELEPHONY" INITIATIVE TO ASSURE COURT
  AUTHORIZED LAW ENFORCEMENT ACCESS FOR ELECTRONIC SURVEILLANCE TO
  DIGITIZED COMMUNICATIONS. This proposal would appropriate funds to
  implement recent amendments to statutes governing secure telephone
  transmission (digital telephony). These amendments require telephone
  carriers to install and maintain sophisticated equipment which would
  permit law enforcement to continue to conduct legal electronic
  surveillance.

* CREATE AND ALLOCATE FUNDS FOR A SPECIAL FBI COUNTERTERRORIST AND
  COUNTERINTELLIGENCE FUND. This proposal will fund costs associated
  cases which arise in connection with terrorism crises, including
  logistics and other support.

* Create an interagency Domestic Counterterrorism Center headed by the
  FBI. This proposal will establish a partnership effort between the
  Justice Department, including the FBI, and other federal and state law
  enforcement authorities to coordinate efforts within the United
  States.

      (3) CONDUCT TERRORISM THREAT ASSESSMENT OF EVERY FEDERAL FACILITY
IN THE COUNTRY WITHIN THE NEXT 60 DAYS. The President has
directed the Attorney General to conduct this assessment and report her
recommendations in 60 days. The assessment has already begun.

        (4) DIRECT GSA TO REPLACE THE FEDERAL BUILDING IN OKLAHOMA CITY.

        (5) DIRECT THE FBI DIRECTOR, THE ATTORNEY GENERAL, AND THE NATIONAL
SECURITY ADVISER TO PREPARE A PRESIDENTIAL DECISION DIRECTIVE AUTHORIZING
ANY AND ALL FURTHER STEPS NECESSARY TO COMBAT FOREIGN AND DOMESTIC
TERRORISM.

II.     New Legislative Proposals

        (1) INVESTIGATIONS

* HIRE APPROXIMATELY 1000 NEW AGENTS, PROSECUTORS, AND OTHER FEDERAL LAW
  ENFORCEMENT AND SUPPORT PERSONNEL TO INVESTIGATE, DETER, AND PROSECUTE
  TERRORIST ACTIVITY.

* PASS LEGISLATION TO REQUIRE, WITHIN 1 YEAR, THE INCLUSION OF TAGGANTS
  IN STANDARD EXPLOSIVE DEVICE RAW MATERIALS WHICH WILL PERMIT TRACING
  OF THE MATERIALS POST-EXPLOSION. This proposal would require the
  inclusion of microscopic particles in certain raw materials, thereby
  permitting law enforcement to trace the source of the explosive even
  after a device has been detonated.

* REQUIRE THE BATF TO STUDY AND REPORT ON 1) THE TAGGING OF EXPLOSIVE
  MATERIALS FOR PURPOSES OF IDENTIFICATION AND DETECTION; 2) WHETHER
  COMMON CHEMICALS USED TO MANUFACTURE EXPLOSIVES CAN BE RENDERED INERT
  FOR USE IN EXPLOSIVES; AND 3) WHETHER CONTROLS CAN BE IMPOSED ON
  CERTAIN PRECURSOR CHEMICALS USED TO MANUFACTURE EXPLOSIVES. In light
  of recent bombing incidents, there is a need to develop technologies
  that will make it possible to detect concealed explosives.
  Additionally, if bombings do take place, a means of providing some
  clues is needed to lead investigators to those responsible for the
  explosion. Moreover, since explosives can be manufactured using common
  agricultural and household materials, it is important to determine
  whether such materials can be manufactured in a manner so that their
  use in explosives is unlikely. Finally, the study would determine
  whether any reasonable controls can be placed on precursor chemicals,
  e.g., ammonium nitrate, which have many legitimate uses.

* AMEND THE POSSE COMITATUS ACT TO PERMIT MILITARY PARTICIPATION IN
  CRIME-FIGHTING INVOLVING WEAPONS OF MASS DESTRUCTION. This proposal
  would amend Federal Laws, which severely limit the role of the
  military in domestic law enforcement, to permit military participation
  in criminal cases involving chemical, biological, and other weapons of
  mass destruction; areas in which the military has specialized
  expertise.

* AMEND THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1868 TO
CONSTITUTIONALLY ENHANCE USE OF ELECTRONIC SURVEILLANCE TO FIGHT
  TERRORISM. This proposal would: permit any federal felony to be used
  as a basis for an electronic surveillance order; ease restrictions on
  the use, in American court proceedings, of information from electronic
  surveillance conducted by foreign governments; forbid suppression of
  electronic evidence unless law enforcement acted in bad faith in
  obtaining the evidence; authorize emergency electronic surveillance in
  situations involving threats by domestic terrorist organizations,
  authorize roving wiretaps where it is not practical to specify the
  number of the phone to be tapped, such as where a target uses multiple
  pay phones; allow the FBI to obtain records of local telephone calls,
  without the need for a court order, as they can own obtain records of
  long-diastase calls; and require telephone companies and/or service
  providers to preserve evidence until a court order could be obtained.
  None of these changes would alter the requirement for probable cause
  prior to engaging in electronic surveillance.

        (2) PROSECUTION

* AMEND FEDERAL LAW TO CRIMINALIZE THE USE OF ALL CHEMICAL WEAPONS TO
  INCLUDE ALL FORMS OF CHEMICAL WEAPONS. This bill would amend federal
  law to include chemical weapons in non-gaseous form. Under existing
  law, chemical weapons in gaseous form are covered, but those which are
  in liquid or solid form are not. Thus, for example, an individual who
  introduces dioxin in solid form into the water supply of a city would
  not be chargeable under current law.

* MAKE IT ILLEGAL TO POSSESS EXPLOSIVES KNOWING THAT THEY ARE STOLEN.
  This proposal would conform explosive laws to existing firearms
  statutes, making it a crime for an individual to possess explosives
  which the individual knows are stolen.

* EXTEND THE STATUTE OF LIMITATIONS ON THE NATIONAL FIREARMS ACT TO FIVE
  (5) YEARS. This proposal would extend from three (3) to five (5) years
  the statute of limitations for prosecution for violations of the
  National Firearms Act, which deals with explosive and incendiary
  bombs. This change brings the statue of limitations for these offenses
  in line with similar criminal provisions.

* PROVIDE THE SECRETARY OF TREASURY AUTHORITY TO DIRECT THE USE OF
  TREASURY DEPARTMENT AIRCRAFT TO SUPPORT EMERGENCY LAW ENFORCEMENT
  SITUATIONS. This proposal would authorize the Secretary of Treasury to
  authorize the use of Treasury Department aircraft in support of
  emergency law enforcement crises.

* AMEND REWARD STATUTES TO REDUCE RESTRICTIONS ON MAKING REWARDS. This
  proposal would provide the Attorney General authority to pay a reward
  which is not subject to the spending limitations contained in 18 USC
  '' 3059 and 3072, provided that any reward of $100,000 or more may not
  be made without the approval of the President of the Attorney General,
  and such approval may not be delegated.

        (3) PENALTIES

* INCREASE THE PENALTY FOR ANYONE CONVICTED OF TRANSFERRING A FIREARM OR
  EXPLOSIVE KNOWING THAT IT WILL BE SUE DOT COMMIT A CRIME OF VIOLENCE
  OR DRUG TRAFFICKING CRIME. This proposal will provide a mandatory
  penalty of not less than 10 years for any person who transfers a
  firearm knowing or having reasonable cause to believe that a firearm
  will be used to commit a crime of violence or drug-trafficking crime.

* AMEND 18 USC ' 111 TO PROVIDE ENHANCED PENALTIES FOR ALL CURRENT AND
  FORMER FEDERAL EMPLOYEES AGAINST TERRORIST ATTACKS. The existing
  statute only protects enumerated categories of current Federal
  employees. The proposed statute would provide enhanced penalties for
  crimes against all current and former Federal employees, and their
  immediate families, when the crime is committed because of the
  official duties of the federal employee.

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UPDATE: Communications Decency Act Senate Vote Expected by June

The Senate is expected to consider telecommunications reform legislation
(S. 652), which includes the Exon/Gorton Communications Decency Act
(Title IV), sometime towards the end of May or begining of June. The vote
had been expected to occur in the first week of May, but other issues,
including counter-terrorism legislation, are likely to delay Senate action.

Senator Patrick Leahy's (D-VT) alternative proposal (S. 714) is gaining
support among key members of congress and industry. CDT is working with
Senator Leahy, the public interest community, and representatives of the
communicaitons, computer, online services, and publishing industries to
generate support for Senator Leahy's proposal.

Action on the House version of the CDA (HR 1004) is not expected to occur
any time soon as its sponsor, Rep. Tim Johnson (D-SD) has recently backed
away from the proposal. In a letter to Rep. Jack Fields (R-TX and Chair of
the Hse. Telecomm. Subcommitte), circulated by CDT, Rep. Johnson urged the
Committee to hold hearings and consider alternatives to protect children
from controversial content instead of rushing to enact the CDA.

CDT has set up the following auto-reply aliases to keep you informed on the
Communications Decency Act issue.

For information on the bill, including
CDT's analysis and the text of Senator
Leahy's alternative proposal and
information on what you can do to
help                                         -- cda-info@cdt.org

For the current status of the bill,
including scheduled House and
Senate action (updated as events
warrant)                                     -- cda-stat@cdt.org


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ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY

The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.

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                                  ###

Lenny Foner
Last modified: Wed May 17 22:48:20 1995