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Ashcroft Should Slow Down His Rush to Change Our Laws

AS LAWMAKERS debate proposed new legislation that may curtail civil

liberties, it is important to understand some of the existing legislation that

grants the government sweeping powers to investigate and detain suspects. These

laws, which have already withstood constitutional challenge, are now being

widely employed around the country.

A law enforcement tool largely unknown outside of criminal justice circles

is the material witness warrant. Under the federal code, a judge may issue a

warrant to arrest anyone for whom there is probable cause to believe he or she

may have important testimony in a criminal proceeding - when securing the

appearance of that person may be "impracticable."

Unlike the usual arrest warrant requiring evidence that a person has

committed a crime, material witness warrants can be issued against innocent

persons simply because they possess relevant information but might flee. Once

arrested, the "material witness" can be jailed almost indefinitely in order to

prevent a "failure of justice." Hence, foreign nationals can be held until the

criminal justice investigation clears them or ripens to the point that they can

be charged with a crime.

Also largely unknown outside law enforcement circles is the Foreign

Intelligence Surveillance Act of 1978, or FISA, which allows the attorney

general to obtain court orders for wiretaps, to install listening devices and

conduct searches without any need to show that a crime has been or is about to

be committed.

A FISA interception order requires little beyond probable cause to believe

that the person or group targeted is an agent of a foreign power of an

international terrorist group. FISA warrants are issued in secrecy by special

courts that have only once turned down an application, according to the public

record. American citizens and lawful, resident aliens generally may not be

targeted under FISA, but exceptions exist even there.

Better known to the American public is the federal grand jury, at least one

of which has been impanelled in New York's Southern District to investigate

the recent attacks. Everyone summoned to appear before a grand jury is legally

required to answer questions: Assertions of the privilege against

self-incrimination can be overridden by prosecutorial grants of immunity.

Witnesses who refuse to answer lawful questions may be jailed until they

cooperate. They can also be prosecuted criminally and sentenced to lengthy

terms of imprisonment.

With respect to controlling immigrants who reside here or who seek entry,

the U.S. Supreme Court has ruled that no person who is not a citizen of this

country has a constitutional right to be here. Congress and the executive

branch have broad powers to regulate, question, detain and remove non-U.S.

citizens present in the United States.

Non-resident aliens may be barred outright from entering into the United

States. Once granted the privilege of entering the country, an alien's

residency and activities are subject to control and review. The government is

free to scrutinize any alien it chooses, and it can withdraw someone's visa

without showing that the person has been involved in criminal activity. Even

lawful resident aliens can be removed from this country based upon secret

evidence to which they never become privy.

Aliens may be detained for violations of their terms of entry and residence

- even trivial offenses such as working without permission or failing to

report a new address. The many individuals recently arrested for being

"out-of-status" are being held for minor violations of immigration law that are

generally overlooked, and they will probably remain in detention until

prosecutors decide whether to bring charges stemming from the attack or they

are deported.

These laws and many others already provide the government with extensive

legal resources to meet the current crisis. They have been abused even in times

of peace. Grand juries have been used to harass legitimate political

activists, and techniques designed for foreign intelligence gathering have been

employed against Americans lawfully opposing U.S. policies. Periodic bursts of

anti-immigrant sentiment, often with racist overtones, have targeted the

honest and hard-working among us.

The government may need additional powers to update laws in response both

to technological revolutions and the current crisis. Some of the proposals by

Attorney General John Ashcroft would make only narrow reforms that were long

overdue anyway. Other proposals, particularly granting law enforcement broad

powers to deport legal aliens without any evidence of wrongdoing, are vastly

more troubling and have been stripped from the House of Representatives'

version of the bill.

Ashcroft has demanded speedy congressional action. But with such formidable

powers already in the hands of law enforcement, all proposals for new

legislation should receive respectful, but searching, open and deliberate


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