Intelligence bill expands government power in probes

Measure to ease standards for FBI surveillance warrants and detaining suspects without bail

By: Dan Eggen
The Washington Post
Friday, December 10, 2004

WASHINGTON -- The intelligence package approved by Congress this week includes a series of little-noticed measures that will broaden the government's power to conduct terrorism investigations, including provisions that loosen standards for FBI surveillance warrants and allow the Justice Department to more easily detain suspects without bail.

Other law enforcement-related measures in the bill, which President Bush is expected to sign next week, include an expansion of the criteria that constitute "material support" to terrorist groups and the ability to share U.S. grand jury information with foreign governments in urgent terrorism cases.

These and other changes designed to strengthen federal counterterrorism programs have long been sought by the Bush administration and the Justice Department, but have languished in Congress in part because of opposition from civil liberties advocates.

Justice spokesman Mark Corallo characterized the measures as "common-sense reforms aimed at preventing terrorist attacks."

"We are very pleased that the Congress agreed with us that despite having passed the Patriot Act right after 9/11, we still had work to do," Corallo said, referring to the anti-terrorism legislation approved in October 2001. "We have to constantly look at the laws and look at our vulnerabilities and make sure we are doing everything we can within the law to protect the American people."

But civil liberties advocates and some Democrats said the measures will do little to protect the public while further eroding constitutional protections for innocent people caught up in terrorism investigations.

Critics also complain that the proposed changes were overshadowed by the debate over restructuring control of the nation's intelligence community.. Some Democrats say they reluctantly approved the package because they favored the broader structural changes.

Sen. Russ Feingold, D-Wis., said in a statement that although he voted for the bill because of its intelligence reforms, he opposed much of the expansion of law enforcement power. Most of those were not part of the 9/11 panel's recommendations.

"I am troubled by some provisions that were added in conference that have nothing to do with reforming our intelligence network," Feingold said, adding later, "This Justice Department has a record of abusing its detention powers post-9/11 and of making terrorism allegations that turn out to have no merit."

Charlie Mitchell, legislative counsel for the American Civil Liberties Union, said the law enforcement measures are "most troubling in terms of the trend they represent. They keep pushing and pushing without any attempt to review what they've done."

Some of the changes were originally part of a legislative draft drawn up by Justice prosecutors in 2002 as a proposed expansion of the USA Patriot Act, according to administration and congressional officials. The draft, leaked to the press and dubbed "Patriot II" by critics, was never introduced as a bill in its entirety. But portions were introduced as stand-alone legislation.

As with parts of the original Patriot Act, some of the new powers will expire at the end of 2005 or 2006 unless they are renewed by Congress.

One key change is a provision in the new intelligence package targeting "lone wolf" terrorists not linked with established terrorist groups. In language similar to earlier Senate legislation, the bill allows the FBI to obtain secret surveillance and search warrants of individuals without having to show a connection between the target of the warrant and a foreign government or terror group.

The provision is aimed at avoiding the quandary that faced FBI investigators in the weeks before the Sept. 11 attacks, when government lawyers haggled over whether they could link suspect Zacarias Moussaoui to a terrorist group and legally search his belongings.

Moussaoui has since been charged in connection with the attacks.

Other provisions in the bill include the following:

  • Suspects in major terrorism crimes automatically will be denied bail unless they can show they're not a danger or a flight risk. Advocates say the provision is modeled on similar rules for certain drug crimes, but Mitchell said it will increase the possibility of indefinite detention in alleged terrorism cases.

  • The bill increases criminal penalties for crimes including harboring illegal aliens; perpetrating a terrorist hoax; and possessing smallpox, anti-aircraft missile systems and radiological "dirty" bombs. The law also is more explicit than current statutes in making it illegal to attend military-style training camps run by al-Qaida or other terrorist groups.
  • The law allows federal prosecutors to share secret information obtained by grand juries with states or foreign governments to protect against terrorist attacks. German authorities, among others, have complained about difficulties obtaining information from the FBI and other U.S. agencies about foreign terrorist suspects.