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U.S.: Congress Reaches Compromise On Antiterror Legislation

  • Andrew Tully

Two weeks after the September 11 terrorist attacks on New York and Washington, U.S. President George W. Bush formally asked Congress to give federal law enforcement officials more power to fight terrorism in America. Congress resisted some of the president's requests, saying expanded police powers could mean shrinking civil liberties. Now Congress and the White House have come up with a compromise that seems to satisfy both sides and protect Americans' constitutional rights.

Washington, 3 October 2001 (RFE/RL) -- The Judiciary Committee of the U.S. House of Representatives today considers compromise legislation designed to help American law enforcement officials fight terrorists.

The administration of President George W. Bush has been seeking broader powers to fight terrorism in the U.S. since the 11 September attacks in New York and Washington that have left some 6,000 people missing and presumed dead.

Many members of Congress have resisted Bush's proposals, saying they would expand police powers while narrowing civil liberties. This stand led to the compromise that has broad support in the House. A similar Senate compromise is being developed.

One of the more controversial Bush proposals would have allowed federal authorities to hold a foreign visitor suspected of terrorist activity for an indefinite period. The compromise would require the government to file formal charges within a week, or to release him.

A second proposal would have given law enforcement officials the right to electronically eavesdrop on the conversations of a suspected terrorist, no matter what communications device he was using. Current law permits such eavesdropping -- called a "wiretap" -- on a single telephone. Under the current compromise, this power would expire in two years unless Congress were to explicitly extend it.

U.S. Attorney General [Justice Minister] John Ashcroft recently appeared before the Judiciary committees of both the Senate and the House to argue for the proposals. And he made it clear during his appearance before the House panel that the expanded powers he was seeking for his investigators was not a "wish list" -- an arbitrary list of unreasonable requests.

"The antiterrorism proposals that have been submitted by the administration and, very frankly, informed by and shaped by collaboration with members of this committee and other members of the Congress, represent careful, balanced, in many cases long-overdue improvements to our capacity to combat terrorism. It is not a wish list."

But political analysts told RFE/RL that a "wish list" is exactly what the Bush administration presented to Congress. And yet they also said it is not inappropriate for a president or his senior aides to ask Congress to give more than can be reasonably expected. That has been the way of negotiations for centuries, and it illustrates the checks and balances of the American democratic system.

Allan Lichtman, a professor of American history at American University in Washington, says that like any negotiations, the bargaining between the White House and Congress can begin with extreme demands on one side and extreme resistance on the other -- only to lead to a moderate compromise in the end. He told RFE/RL that this is especially true when one party controls the Senate and the other controls the House.

"That game is as old as the republic itself, the game of negotiation and compromise between the Congress and the presidency. The presidents typically come in with something that they know is not simply going to be rubber-stamped by Congress, particularly when it's a divided Congress."

Larry Sabato is a political analyst at the University of Virginia. He told RFE/RL that Congress includes many political opponents of the Bush administration, plus many others who ordinarily support Bush but are reluctant to bestow more powers of any sort on the executive branch.

As a result, Sabato says, Ashcroft knew when he presented his proposals to the House and Senate judiciary committees that the administration would not get everything it asked for.

"The administration understands that they're only going to get a piece of what they're proposing. They know that prior to 11 September, this entire package was a non-starter. Only the events of 11 September have made any of it palatable."

Roger Pilon is the director of the Center for Constitutional Studies at the Cato Institute, an independent policy foundation in Washington. He told RFE/RL Congress may not always succeed in reining in the efforts of the executive branch of the U.S. government -- the president and his cabinet. Then, he says, it is up to the judicial branch of government to step in.

"That's why it's so crucial in a democracy that you have an independent judiciary that can resist the passions of the moment and say that this law simply goes too far."

Pilon says the provision that puts a time limit on the expanded wiretapping authority is a good example of the constraints that Congress can impose even on itself. In this case, he says, Congress ensures that it must take direct action to extend the wiretap authority.

But Pilon says the term of this authority is too long for a provision that gives so much power to law enforcement officers. He says the expansion of electronic eavesdropping is being proposed specifically for the short-term fight against terrorism, and presumably the search for terrorists within the U.S. will be over before two years pass.

According to Pilon, a shorter term, six months, would give Congress plenty of time to consider a bill they passed in haste.

"Six months is enough time for Congress to sit down and think long and hard about the powers it has just granted on an emergency basis. Two years is too long, in my judgment."

Pilon notes that until the terrorism crisis, Congress had not seen fit to broaden this eavesdropping power, even for investigations of organized-crime figures and drug smugglers, both of whom are considered serious threats to the stability of American society. And yet, he says, law enforcement officers are certain to use these new powers against these suspects.

Pilon says that any time a government is granted more authority, it will tend to abuse it. He quoted 19th century British historian Lord Acton, who wrote, "Power tends to corrupt; absolute power corrupts absolutely."

But Sabato -- of the University of Virginia -- says he believes congressional negotiators carefully chose the two-year term for expanded wiretap authority. He notes that every two years, a new Congress is elected. Therefore, he said, this provision will ensure that the measure is reviewed more objectively by legislators who may not have had a hand in passing it.