SECURITY VS CIVIL RIGHTS?

October, 2001
		How will the new anti-terrorism legislation affect civil rights? Taking your questions are Douglas Kmiec, dean of the Catholic University School of Law; Anthony Romero, executive director of the American Civil Liberties Union; and Loretta Lynch, the former U.S. Attorney for the Eastern District of New York.

Forum Introduction Should non-citizens have the same rights as citizens when national security is at stake? How will the anti-terrorist bill affect our right to privacy on the Internet and cell phones? How often are sunset limitations used and how often are bills renewed?: How will the new office of Homeland Security be affected by the anti-terrorist laws? Could the new legislation allow information sharing between INS officials and intelligence agencies? Does the new legislation empower federal authorities to collect information but not use it against us?       Online Specials: The Response Combating Terrorism America After the Attacks Sept. 25, 2001: A discussion about the impact of anti-terrorism legislation on civil liberties. Sept. 24, 2001: A look at Attorney Gen. John Ashcroft's congressional testimony in favor of greater Justice Dept. authority. Browse the NewsHour's coverage of: terrorism

Sam of St. Charles, MO asks: How will the new office of Homeland Security be affected by the anti-terrorist laws? Will the new legislation permit the FBI and CIA to exchange information in order to improve their intelligence? How could that affect the rights of most U.S. citizens? Douglas Kmiec responds: There is nothing directly said about the new Office of Homeland security in the legislation that I have seen. Like the questioner, I find this curious, and I believe Governor Ridge will have his work cut out for him in trying to directly administer authority that is presently lodged by tradition and statute in either law enforcement or intelligence agencies. Hopefully, by executive order the President can erase some of the artificial lines that have hampered communication across agencies in the past. That said, the new law does promote coordination that doesn't presently exist and an aggressive directional attitude by Governor Ridge could make certain that such coordination occurs. For example, under current law, so-called Rule 6(e) severely restricts the dissemination of grand jury material. Fed. R. Crim. P. 6(e). For example, when grand jury information is shared with law enforcement personnel, the Government must provide the judge with a list of every officer receiving such information. In the current investigation of the September 11th terrorist attacks, this could be thousands of officers. The new legislation would allow more sharing of grand jury information with federal law enforcement, intelligence, and defense personnel in cases of domestic and international terrorism or national security. No listing of the name of each person who receives such information would be required to be given to the judge. Also, the bill would clarify that evidence that existed prior to the grand jury's investigation would not be covered by the grand jury secrecy rule. If the grand jury investigation that had been ongoing regarding the 1993 attacks on the World Trade Center had revealed that an additional attack on the WTC or the Pentagon was being planned, certainly all of us would have wanted the FBI, CIA, and Department of Defense to know and act in coordinated response. This is where the Office of Homeland Security can play a role as I see it, but much will depend on the personal persuasion and alertness of Governor Ridge and his staff, rather than specific legal entitlements. Loretta Lynch responds: The new office of Homeland Security has been created separately from the proposed legislation. The Director of Homeland Security is a cabinet level position, on the level of National Security Advisor, and will oversee a council composed of the Vice President, Attorney General, Secretaries of Defense, Treasury, Transportation and Health and Human Services and head of the CIA and FBI. Charged with coordinating efforts to respond to terrorism, the new director will have access to information gathered in terrorism investigations. To the extent the new legislation expands the type of information gathered and allows for sharing of information within the intelligence community, his office will be involved. For example, the new legislation would allow foreign intelligence information learned during a criminal investigation to be shared with any federal law enforcement, intelligence, protection, national defense, or immigration agency as well as the President and Vice President. Similarly, if information regarding terrorism or affecting national security is learned during a grand jury investigation (which information generally cannot be shared beyond the investigating agency), the new legislation would allow the government to obtain a court order allowing that information to be shared with the above listed agencies and offices. Investigating agencies will also be empowered to request tax information in connection with terrorism investigations. Although all of its powers have not been completely spelled out, it would appear that the new office of Homeland Security would have the authority to request and review such information. While there are no specific provisions in the new legislation that provide for the exchange of information between the FBI and CIA, such information sharing would be covered by the provisions that allow foreign intelligence and terrorism information from criminal investigations to be shared with the intelligence community, of which the CIA is an important member. While this would give the CIA access to information it ordinarily would not have, a showing would have to be made of the foreign intelligence component and national security interest before it could be divulged. This recognizes the privacy interest in the information. Anthony Romero responds: There is no direct connection between the new anti-terrorism legislation and the Office of Homeland Security, which was created recently by an executive order from the President. According to the White House, the new office will have the responsibility of coordinating a wide variety of local, state and federal security agencies' anti-terrorism activities, including the preparation and distribution of intelligence reports and preparedness plans. The anti-terrorism legislation does contain new information sharing provisions. One troubling new measure would give the Director of Central Intelligence the power to manage the gathering of intelligence in America and mandate the disclosure of information obtained by the FBI about terrorism in general - even if it is about law-abiding American citizens - to the CIA. To allow the CIA to spy directly on Americans violates its statutory charter and harks back to the days of "Operation Chaos", the covert domestic surveillance program used in the 1960s and '70s to monitor the peace movement and other political dissenters.