Submitted by U.S. Sen. Strom Thurmond on behalf of SLF

SOUTHEASTERN LEGAL FOUNDATION STATEMENT ON TERRORISM LEGISLATION

The Foundation wholeheartedly supports President Bush's declaration of war against terrorism, and supports giving law enforcement and national security officials the tools they need to wage this war. However, the Foundation, along with many other public interest groups and legislators on both sides of the aisle, was gravely concerned that the original legislation requested by Attorney General John Ashcroft went too far in eclipsing vital constitutional protections of law abiding citizens.

The Southeastern Legal Foundation applauds the work of the House Judiciary Committee on the "Patriot Act," the package of reforms requested by the Bush Administration to deal with the terrorist war against American civilization.

It is important for us to remember that new laws will be worthless if they are not enforced. We already have laws that should have prevented these attacks. It is a major scandal that fully 15 of the 19 hijackers were in the U.S. on expired visas. If we had simply enforced the visas and deported these people as the law already requires, then in all likelihood the attacks would have been thwarted. This would be preferable to surrendering individual freedoms to the fight against terrorism.

Foreign nationals here on student visas routinely overstay. Former Deputy Assistant FBI director for national security Dale Watson testified before Congress that "we know for a fact that organizations funded by a state sponsor of terrorism fund students coming to the United States . . . and that is part of their intelligence organization." Remember, in this vein, that a terrorist who bombed the World Trade Center in 1993 entered the U.S. on a student visa. In 1996, Congress passed a law requiring universities to report the whereabouts and status of all foreign students in the U.S. to a $40 million electronic tracking system. The law has even been funded by Congress, yet the system has never been used.

But now there are proposals for legislation to make educational institutions open their records to federal law enforcement. This would not be necessary if over the last five years this tracking system had been implemented.

It is appalling that on April 1, 1994, the Clinton administration ordered the INS to stop conducting routine fingerprint background checks on aliens receiving visas. In the year prior to this action, 9,500 visa applications were denied as a result of this check. In the intervening seven years at that rate some 70,000 visas have been granted to individuals who would have flunked the fingerprint background check. Is it any wonder that the enemy wandered freely in our midst?

We do not need to surrender our civil liberties to solve these problems - we need the will to properly enforce our immigration laws. We can no longer allow immigration policy to serve the interests of those seeking cheap labor, cheap votes, or a relief valve for discredited economic policies in other countries. Immigration policy is now an urgent matter of national security.

Turning to the pending legislation, the House Judiciary Committee has added a sunset provision, which provides that the new powers granted by the Patriot Act will expire at the end of 2003 unless reauthorized by Congress. The Senate version contains no such limitation. The sunset provision would confer emergency powers on the government as required by the demands of this war, and restore the liberties thus restricted when the war has been won. The dramatic expansion of federal power for the war on terrorism should last no longer than the war itself.

The Foundation was likewise concerned that permitting the executive branch to indefinitely detain aliens without judicial review, and is relieved that this provision has been removed from both the House and Senate versions of the bill.

The Foundation supports the Administration's proposal for sharing grand jury information with national security and intelligence officials. When terrorist acts are investigated and prosecuted as crimes, as was the case with the 1993 World Trade Center bombing, and the Khobar Towers bombing, a great deal of vital information is gathered by the grand jury which is directly relevant to our national security. After all, these are not random unconnected criminal acts, but are instead part of the enemy's integrated war plan against the United States. It is the very height of folly to deny our intelligence and national security forces information regarding enemy acts of war simply because it was a grand jury that uncovered it.

While allowing law enforcement to share information with national security officials is acceptable, constitutional restraints on law enforcement use of intelligence information in criminal prosecutions should be maintained. Thus, evidence illegally obtained by foreign governments should not be allowed in criminal prosecutions, and the House and Senate wisely removed these provisions.

The proposals for nationwide warrants and multi-point wiretap authority should be approved despite the Fourth Amendment risks as long as there is a sunset provision and the initial issuance is supported by judicial approval of the warrant. These are necessary and reasonable adaptations to the ways in which terrorists have taken advantage of technology and freedom of movement in our country. However, this legislation should also permit such a warrant to be challenged in any jurisdiction in which it is served in order to check forum shopping by the government.

The interception of electronic communications - e-mail and web surfing should be limited in the same way that PEN register and trap and trace devices are currently limited - to and from information can be collected, but not the content of e-mailed communications.

Proposed changes in the definition of what constitutes a "terrorism offense" are sufficiently overbroad that they could be applied to teenagers putting firecrackers in mailboxes. When an act meets this overbroad definition, then the entire panoply of surveillance and enforcement powers comes into play. The potential for abuse by overzealous government officials is extremely high. There is a difference between the youthful indiscretions of a teenager and a terrorist act, and the legislation should have the wits to reflect that by narrowing the definition of a terrorist act. Terrorist intent should be included in the definition of the offense.

Many years after the enemy first declared it, the United States has finally come to grips with the ugly reality of a new war against a furtive and ruthless enemy. New measures are clearly required, but we should not go too far. In properly limiting the dramatic expansion of power sought by the government, Congress is once again demonstrating the genius of separation of powers. The Southeastern Legal Foundation adds its voice to the many conservative and liberal public interest groups supporting these limitations.

But these new measures will not alone suffice. The new resolve of the American people should also be directed to the scandalously lax enforcement of our immigration law. Our national defense requires it. Laws in several states and under consideration in others, including Georgia, permit issuance of driver's licenses to illegal aliens. Several of the hijackers had obtained driver's licenses from the Commonwealth of Virginia, which facilitated their ability to move around the country and execute their attacks. Even before September 11, 2001, the Southeastern Legal Foundation argued that issuing driver's licenses to illegal aliens directly undermines enforcement of federal immigration laws. In the current environment the practice also undermines our national security. Congress should adopt legislation forbidding states from issuing driver's licenses to illegal aliens.

Respectfully submitted,
Phil Kent
President, Southeastern Legal Foundation

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