http://www.heritage.org/Research/HomelandDefense/wm591.cfm
Intelligence Reform Needs To Enhance Our Legal Capacity To Combat Terrorism
by Paul Rosenzweig
WebMemo #591
October 21, 2004 |
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The House and Senate are now attempting to reconcile their two versions of
the Intelligence Reform bill designed to implement the recommendations of
the 9/11 Commission. By and large, the Senate negotiators appear to have
taken the position that all of the amendments proposed by the House should
be rejected as "extraneous" to the basic bill passed by the Senate.
Editorialists second that instinct, arguing that some of the House
provisions are "trivial" or "irrelevant to intelligence reform."
This view is too narrow and ill-serves the public. To be sure, many of the
House proposals are controversial and the subject of reasonable debate, but
others were adopted by wide, bipartisan majorities and will substantially
strengthen the ability of law enforcement to fight the war on terrorism. It
is difficult to see how strengthening law enforcement's ability to act on
enhanced intelligence is irrelevant-to the contrary, creating a new
intelligence structure without the ability to respond is little more than
action without purpose.
Here are two non-controversial provisions from the House version of the bill
that any reasonable intelligence reform package would include:
*
Sections 2401-11 of the House bill prohibits the private possession of
Man-Portable Air Defense Systems (MANPADS; that is, Stinger missiles),
atomic weapons, dirty bombs, and small pox. The provision passed by a vote
of 385-30. Who could reasonably oppose a prohibition against the possession
of these items?
*
Section 2001 of the House bill applies our existing foreign
intelligence surveillance law to foreign terrorists who have no known
affiliation with a foreign organization. Senator Charles Schumer (D-NY)
originally sponsored this so-called "lone wolf" provision, and it
independently passed the Senate by a vote of 90-4. The only reason the
Senate might oppose its inclusion today is procedural stubbornness.
Good common sense supports other proposals that were not passed with such
overwhelming majorities. Consider, for example, Section 2042 of the House
bill. The law currently prohibits individuals from providing material
support to a foreign terrorist organization. This has generated little
controversy. It has not, for example, been problematic to use existing law
to prosecute Mohamed Junneh Barbar, who shipped military equipment from
America to al-Qaeda operatives in Waziristan, on the border of Afghanistan.
But the current law has a strange loophole. Due principally to an oversight,
it is not considered "material support" if one personally receives training
in an al Qaeda training camp. So shipping a gun to Afghanistan is illegal,
but going there yourself and learning how to use it to fight American troops
is not. Section 2042 closes that loophole and is a good law, on the merits.
Similarly, Section 2041 of the House bill responds to court cases that
declared the current law vague. Specifically, this section provides a
better, more extensive definition of some of the terms in the material
support statute, such as "expert advice and assistance." The material
support law has been the key tool in the legal arsenal against terrorism. It
was critical to the successful dismantling of terror cells in Portland,
Oregon, in Lackawanna, New York, and in Virginia. Likewise, the materiel
support statute assisted the prosecution in San Diego of those involved with
an al Qaeda drugs-for-weapons plot involving Stinger anti-aircraft missiles.
The provisions also aided in the prosecution of Enaam Arnaout, an individual
who had a long-standing relationship with Osama bin Laden and who used his
charity both to obtain funds illicitly from unsuspecting Americans for
terrorist organizations, such as al Qaeda, and to serve as a channel for
people to contribute money knowingly to such groups. Why would anyone want
to keep so critical a statute vague and indefinite when tighter, more
specific definitions are on the table?
The only answer is politics-the Senate wants to impose its will by calling
any amendment by the House a deal-killer (or as the editorialists would have
it, an "election-year" grab bag). No doubt some in the House are also
motivated by political considerations. But intelligence reform is too
important for politics and too important to rush. Every one of the competing
provisions should be considered on its own merits and accepted or rejected
on that basis. If that means that both chambers of Congress must compromise,
so be it. That is what the legislative process is about, and those who would
erect a procedural barrier to consideration of the House amendments are
placing their political interest in having a reform bill-any reform bill-out
before the elections ahead of the national interest in good reform.
Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and
Judicial Studies at The Heritage Foundation.
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