Is the Senate intelligence committee carrying its penchant for secrecy too far?
The American Civil Liberties Union thinks so, pointing to the committee's plans to discuss and vote behind closed doors this month on a bill that would authorize secret court warrants for secret searches in foreign intelligence cases.
The proposal, part of a package known as the Counterintelligence Improvements Act of 1990, was unveiled publicly before the committee in May and discussed at a public hearing in July.
Now that it's markup time, the committee is reverting to its traditional practice of meeting in secret. Members are planning to hold the session behind closed doors sometime before the summer recess, possibly Thursday, according to committee spokesman Jim Currie.
"We generally hold our markups in closed sessions," Currie said. "It gives the members more freedom to talk about matters related to espionage."
Gary Stern, the ACLU's legislative counsel, said that constitutional rights are at stake, too. He cited the Fourth Amendment, which guarantees "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. . . . "
The bill "should be dealt with openly, particularly when it comes to authorizing secret searches," Stern said. "It would be ironic to do that secretly."
Another irony is that the ACLU and the Bush administration oppose the proposed warrant procedure, though for different reasons.
The administration contends that the president has inherent authority to order surreptitious searches -- popularly known as "black bag jobs" -- in national security cases without seeking court approval.
The ACLU contends that this practice is blatantly unconstitutional and will be outlawed by the courts one day if the government keeps it up. As a result, the civil liberties group maintains that unless Congress is willing to insist on strict criminal standards for such warrants, including advance notice of the search, an inventory of what is seized and open adversary proceedings afterward, it would be better to maintain the status quo.
The proposal, pending in the Senate and the House, would expand the 1978 Foreign Intelligence Surveillance Act. Under the proposal, warrants would be issued secretly by a special seven-judge court. The evidence seized could then be used in subsequent criminal proceedings without adversary proceedings if the attorney general certified that disclosure of the warrants "would harm the national security."
Supporters of such warrants, such as Rep. Matthew F. McHugh (D-N.Y.), argue that a rule of law is better than none and that searches of one's property or person should be permitted only pursuant to court order.
"What is happening now is that the FBI is, in some cases, conducting physical searches without any court review whatsoever," McHugh said yesterday. "In my view, from a civil liberties standpoint, that is an unacceptable practice."
The House intelligence committee had also been planning to mark up the bill this week, as part of the 1991 intelligence authorization act, but the chairman of the House Judiciary Committee, Rep. Jack Brooks (D-Tex.), told the intelligence panel by letter yesterday that his committee is determined to hold hearings of its own on the proposal.
McHugh said that will probably kill prospects for enactment this year. But he said he hoped "a reasonable compromise," perhaps focusing on a way to handle adversary proceedings, could be worked out.