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Less than a week after terrorists struck, the Bush administration asked Congress to move quickly for what promised to be an extraordinary piece of criminal justice legislation. The proposal was broad — covering immigration law, covert federal surveillance, prison terms, and more — but its chances looked good in a rare moment of absolute political unity in the wake of the Sept. 11 attacks. A month later, Attorney General John Aschcroft is about to get much — but not all — of what he sought. It took an exhausting effort from Justice Department officials and lawmakers to deliver the 240-plus-page bill to the Senate floor, where it received an overwhelming 96-1 vote of approval as midnight approached on Oct. 11. The House of Representatives — after charting its own course — eventually took up the Senate’s proposal in place of its own, very different, measure. The legislation may not have jumped along as swiftly as the administration initially hoped, but in the way Congress works it moved at lightning speed. It was 30 intense days of lawmaking that consumed the interests of many key players on Capitol Hill and within the administration. And in the end, wartime politics produced an unusual result, as the Democrat-controlled Senate — and not the GOP-run House of Representatives — led the way for the White House. SENATE ENGAGEMENT On Sept. 17, six days after the attacks, Ashcroft announced that President George W. Bush wanted extensions of federal power to eavesdrop on members of the American public and detain noncitizens. He wanted to make it much easier to keep in custody noncitizens who had any apparent immigration or visa problems. He wanted to give federal prosecutors access to previously secret intelligence-related wiretaps, and he wanted intelligence officials to have access to grand jury testimony previously available only to prosecutors. Not all of the proposals were new. Some — such as provisions allowing law enforcement agencies to tap any telephone used by a suspect, as opposed to a single telephone — had failed in previous Congresses. But suddenly on a war footing, and with partisan dissent going out of style on Capitol Hill, the chances for quick passage looked good. Indeed, in the days after Sept. 11, lawmakers buried fights over Social Security and campaign reform in order to advance the commander in chief’s agenda. Authorization for military force against terrorists and a $15 billion airline industry bailout passed easily. However, Ashcroft’s request that Congress vote on the anti-terrorism bill by the end of that week was simply impossible. In fact, on the Saturday after the attacks, when Justice Department officials met Judiciary Committee staffers in a Senate conference room to give a briefing on their proposal, they acknowledged that the immigration section of the DOJ proposal was incomplete. “I was taken aback,” says one Republican Judiciary staffer who received the unfinished draft. That said, the staffer thought the unified spirit in the halls would move the bill to passage swiftly: “We all know we’re going to do it. We all want it to be constitutional. We all want it to be done fast. I wish life in general could be like this.” Perhaps more important than the hole where immigration proposals ought to have been, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and others said they would not rush any changes in civil liberties protections. Leahy’s opposition took the form of a competing measure that included some of the administration’s proposals to expand surveillance powers. But Leahy’s measure did not reflect the administration’s desire to expand the attorney general’s power to detain aliens suspected of threatening national security. Leahy seemed to be operating from a position of strength. He had taken over the committee only a few months earlier, when the Democrats gained a Senate majority following the defection by Vermont Sen. Jim Jeffords from the Republican Party. But ultimately, some of Leahy’s concerns and those of civil liberties activists would get diluted in the administration’s proposal, which grew to include ideas from the Senate Intelligence and Banking Committees such as expanded money laundering requirements for banks. Ranking minority member Sen. Orrin Hatch, R-Utah, steadily defended the reach of the measure. Hatch underscored that it was more essential than ever for federal authorities to have such tools in place, and he sought swift action. Tim Edgar, legislative counsel of the American Civil Liberties Union, suggested the Democrats “felt they were under enormous pressure to produce,” noting that Ashcroft had singled out Leahy at one point as being an obstacle to the bill’s passage. On Sept. 25, when Ashcroft appeared before his former colleagues in the Senate, he was asked about a possible sunset provision, which would give lawmakers authority to reauthorize the bill or let it lapse if they believed the government’s expanded powers went beyond their intended reach. Ashcroft said he opposed it. “If I thought the risk of terrorism was going to sunset in several years, I’d be glad to say we ought to have a sunset provision,” Ashcroft said in reply to a question from Sen. Dianne Feinstein, D-Calif. The sunset provision would not resurface in the Senate, but it would remain an issue in the House. THE HOUSE NEXT DOOR The sunset provision remained the most significant difference between the House and Senate versions. A bill passed by the House Judiciary Committee would have ended the government’s new surveillance powers in 2003 unless Congress approved them again. The House Judiciary bill also contained more procedural safeguards for noncitizens, who, under both bills, could be detained if the attorney general suspects them to be national security threats. From the start, the House’s approach to the proposal differed considerably from the tack taken in the Senate. While administration officials and Senate staffers engaged in long meetings and negotiations, members of the larger 36-member House Judiciary Committee took the matter more into their own hands. As a result of a somewhat rare coalition of conservative House Republicans with liberal Democrats, the House version trimmed the Bush administration’s request for more power. Backed by constituent groups ranging from the conservative Free Congress Foundation to the liberal ACLU, the coalition expressed deep distrust of expanded federal law enforcement authority. At a Sept. 24 hearing with Ashcroft, Rep. Bob Barr, R-Ga., complained about a provision allowing federal prosecutors to use wiretap information from foreign governments, even if those wiretaps would have violated the Fourth Amendment if conducted in the United States. Moreover, he asked, “Why is it necessary to propose a laundry list of changes to criminal law generally and criminal procedure generally to cast such a wide net?” Soon after, Rep. Maxine Waters, D-Calif., one of the House’s most liberal members, added, “Well, I find myself agreeing with Mr. Barr, and that’s unusual, extraordinary, and certainly not expected from me.” House Judiciary Chairman James Sensenbrenner Jr., R-Wisc., who had originally hoped to vote on the measure soon after Ashcroft’s appearance, had to start negotiating with his committee for the administration bill. The liberal-conservative coalition forced numerous concessions, including a sunset provision, protections against the indefinite detention of aliens, and a rule making it harder for the government to prove an alien supported a terrorist organization. The broad definition of a terrorist organization was one of the unifying concerns of liberal and conservative groups. In an interview, J. Bradley Jansen of the Free Congress Foundation asked, “Are they going to try and call pro-life or gun-activist groups terrorists?” Similarly, ACLU advocates complained that the administration proposal could make Greenpeace or anti-globalization groups subject to anti-terrorism laws. On Oct. 3, Sensenbrenner engineered a 36-0 vote in his committee, passing the House version of the anti-terrorism bill. The unanimous vote was a source of pride for Sensenbrenner. The chairman was “not enthralled” with the sunset provision, said his press secretary, Jeff Lungren, “but we probably have the most polarized committee in the House.” Perhaps the bill could have been passed with more of the administration’s measures intact, added Lungren, but “it’s important to show that Congress is united.” However, much of the House’s work went for naught. Late on Oct. 11, the Senate passed its version 96-1, setting up what appeared to be a conflict with the House, which was set to debate and vote on its Judiciary Committee version on Oct. 12. On the morning of the 12th, the House majority scuttled the Judiciary Committee’s bill and submitted to the floor a bill nearly identical to the one from the Senate, though it included a sunset provision on some surveillance powers. That afternoon, the bill passed, 337-79. Some House members, including Minority Leader Richard Gephardt, D-Mo., complained loudly that their hard-won compromises were being pushed aside. Their concerns seemed to echo what Sen. Leahy had said about his own proposals earlier in the week. “Could we pass a perfect bill?” Leahy asked from the Senate floor on Oct. 9. “I doubt it very much. Is it far better than when it was originally proposed by the administration as far as being protective of civil liberties? I believe it is.”

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