October 21, 2004 | WebMemo on Department of Homeland Security

Intelligence Reform Needs To Enhance Our Legal Capacity To Combat Terrorism

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.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies