An Open Letter to America - Ashcroft's Proposal is Constitutional
Dear Friends:
I have reviewed, along with my Senior Staff at the American Center for Law and Justice, Attorney General Ashcroft's proposal to Congress concerning terrorism entitled "The Mobilization Against Terrorism Act." After careful review of the proposals from the Department of Justice, we conclude that the legislation meets constitutional scrutiny.
The Nation is facing perhaps its greatest threat ever to National Security. We cannot expect to put a halt to terrorist acts if law enforcement does not have the proper tools to do their jobs. That is why this legislation is needed. The laws currently in place are woefully inadequate when it comes to combating and investigating terrorism. These laws need to be modified to keep pace with the technological changes that have occurred throughout the world. This legislation upgrades existing law to meet these changes. I want to encourage you to wholeheartedly support this law and to use your available media resources to provide General Ashcroft with the backing that he needs in order to move forward on this important legislation.
As General Ashcroft stated at the hearings, "We will be ill-advised to slow this process down - there needs to be urgency to this. The Nation is vulnerable." The overall purpose of the legislation is to provide the President and the Department of Justice with the tools and resources necessary to disrupt, weaken, thwart and eliminate the infrastructure of terrorist organizations, to prevent and thwart terrorist attacks, and to punish perpetrators of terrorist acts.
The President proposed a multi-faceted approach to dealing with this war on terrorism, the Attorney General has proposed legislation that will combat terrorism on several fronts.
1) Intelligence Gathering. Title One of the proposal enhances the Department of Justices' capability to gather intelligence necessary to combat terrorist organizations who increasingly employ sophisticated modes of global communications. Existing wiretap authority and procedures have not kept pace with the development of modern technology or the mode of operations of the international terrorist organizations. Since current wiretap authorities are often restricted to specific property (i.e. phones) as opposed to allowing law enforcement to follow the individual suspects involved in terrorist activity, current authority is inadequate for the investigative personnel to monitor terrorist agents and associates. All a terrorist has to do to thwart an existing wiretap is to change cell phones. The legislation will allow the issuance of a wiretap, which still will require probable cause to be proved before a Federal Judge, to follow the individual being investigated. Furthermore, under current law, if a person under investigation leaves the Northern District of New York and moves to the Southern District of New York, a new warrant has to be issued. This requires the Department of Justice Attorneys to appear before yet another Federal Court Judge to obtain a search warrant. This legislation will allow the issuance of the search warrant, based on probable cause, by one Federal Court Judge that will be valid throughout the United States. Federal Courts do have this type of "extra-territorial" jurisdiction under existing law, but it does not apply to terrorist investigations. This legislation will streamline the process and still protect constitutional liberties.
2) Immigration and Naturalization Service. Title Two of the Bill enhances the authority of the Immigration and Naturalization Services Department to detain and remove suspect terrorists by expanding the definition of terrorist to include those who lend support to terrorist organizations. There has been much in the press about unlimited detentions. This is an inaccurate understanding of the law. As Attorney General Ashcroft testified at hearings before the House and Senate, the detention capability only exists while there is a valid deportation proceeding ongoing. Thus, while the deportation proceeding is moving forward, the person allegedly involved in terrorist activity can be detained upon certification of the Attorney General. Thus, there still is judicial review in the deportation process. This will allow the Department of Justice to detain individuals for a sufficient amount of time to conduct thorough investigations of terroristic activities. These terrorists are using sophisticated tools and enterprises to engage in their efforts.
3) Criminal Justice. Title Three proposes changes to enhance the Prosecutor's ability to disable terrorist organizations through the legal process. The proposal amends current law to encourage investigation of terrorist activity prior to successful completion of devastating terrorist acts. There should be two express goals with regard to terrorist activity through criminal legal prosecutions. The first is to make terrorist investigations and prosecutions a national priority. This will allow terrorist acts to be thwarted. Secondly, once sufficient information is obtained regarding a terrorist act, it will then be up to the Department of Justice to prosecute those involved in the enterprise. Under current law, it is easier to prosecute a drug case or a case involving espionage than it is a case involving terrorism. This must be changed in order for the Department of Justice to have the tools necessary to thwart acts of terrorism.
4) Financial Infrastructure. Title Four aims at the financial infrastructure of terrorist organizations whose sophisticated operations require substantial financial resources. Often, such resources are provided by those not directly responsible for the terrorist acts themselves. The Department of Justice proposals will cripple the capacity of terrorist organizations to finance their
illegal activities through criminal and civil resources. In addition, criminal liabilities will be imposed on those who lend support to terrorist activities.
It is important to note that the proposed legislation is narrowly defined to only include terrorist activities. The term terrorism is defined in the bill as "acts dangerous to human life that are a violation of criminal laws of the United States or any state; and appear to be intended (or have the effect of) (i) to intimidate or coerce a civil population; (ii) to influence policy of a government by intimidation or coercion; (iii) to effect the conduct of the government or any function thereof by mass destruction, assassination or kidnaping."
Unfortunately, on September 11th we experienced, first hand, this type of terroristic activity. This legislation will protect the Constitutional rights that we cherish and the civil rights of citizens. But at the same time, the Mobilization Against Terrorism Act will provide the Department of Justice with the tools necessary to fight this war that the President has so clearly stated that we are now engaged in.
Sincerely,
Jay Alan Sekulow
Chief Counsel