roundtable: Feinstein Amendment

roundtable: Feinstein Amendment

Feinstein Amendment

Jill Lesser -- Media Access Project - Washington (jlessern@counsel.com)
Fri, 2 Jun 95 11:51:11 EDT 

Date: Fri, 2 Jun 95 11:51:11 EDT
From: jlessern@counsel.com (Jill Lesser -- Media Access Project - Washington )
Message-Id: <9506021551.AA10097@ad0.reach.com>
To: roundtable@cni.org
Subject: Feinstein Amendment


For everyone's information, the following is a copy of the memo
sent by People For the American Way Action Fund to members of the
Senate asking that they oppose the amendment to be offered by
Senator Feinstein on Monday when the Senate takes up the Terrorism
bill again.  The memo includes the text of the amendment.



           TALKING POINTS IN OPPOSITION TO AN 
           AMENDMENT TO THE TERRORISM  BILL TO
           BE OFFERED BY SENATOR DIANNE FEINSTEIN

Senator Dianne Feinstein has indicated her intention to offer the
following amendment to the terrorism bill likely to hit the floor 
this week.  The amendment reads as follows:

PROHIBITION ON DISSEMINATION OF INFORMATION RELATING TO 
EXPLOSIVE MATERIALS FOR A CRIMINAL PURPOSE.

(a) section 841 of title 18, United States Code, is amended by
adding at the end of the following new section:

"(1) It shall be unlawful for any person to teach or demonstrate 
the making of explosive materials, or to disseminate by any means 
information pertaining to, in whole or in part, the manufacture of 
explosive materials, if the person intends, knows, or reasonably 
should know that such explosive materials or information is likely 
to be used for, or furtherance of, a federal offense or other 
criminal purpose affecting interstate commerce."

(b) Section 844 of title 18, United States Code, is amended by
designating section (a) as subsection (a) (1) and by adding the 
following new subsection:

"(a) Any person who violates subsection (1) of section 842 of this
chapter shall be fined under this title or imprisoned not more than 
twenty years, or both.

THE AMENDMENT IS A CLEAR VIOLATION OF THE FIRST AMENDMENT

There has been significant concern and fear over the availability
of materials that facilitate the construction of explosive devices 
in the aftermath of the Oklahoma City bombing. However, in trying 
to ensure the safety of American citizens it is critical that the 
Senate not go overboard and enact legislation that is clearly 
unconstitutional and sets bad public policy.  Senator Feinstein's 
amendment would do both.  

Senator Feinstein's amendment would make it a crime punishable by
up to twenty years in prison not only to teach or demonstrate the 
making of explosive materials to a particular person, but to 
disseminate information regardless of the recipient, if the sender 
"reasonably should know" that the information could be used in the 
commission of a crime.  

First,  Senator Feinstein's amendment is not like 18 U.S.C. 231
relating to Civil Disorders, on which the amendment is apparently 
based.  That provision makes it a crime to teach or demonstrate 
"to any person the use, applications or making or any firearm or 
explosive or incendiary device, or technique capable of causing 
injury or death to persons knowing, knowing or having reason to 
know or intending that the same will be unlawfully employed for 
use in, or in furtherance of, a civil disorder."  Section 231 
outlaws specific instruction to a particular person.  It does not 
hold a person liable for publishing a book or affixing a label to 
products for public consumption.  Senator Feinstein's amendment 
would do just that.

In the wake of Oklahoma City, the "reasonably should know" standard 
is no standard at all.  In the weeks since the bombing there has 
been an unprecedented amount of press coverage about the number of 
serious militias ready, willing and able to use explosive devices 
or other weapons for terrorists acts.  In other words, if you live 
in the United States today and have not been in hibernation for the 
winter, you should have a reason to know that any information about 
explosive materials might make it into the library of people 
intending to commit unlawful acts.  

In addition, the "reasonably should know" standard is the lowest
standard used in criminal statutes and under Senator Feinstein's 
amendment it would be used to apply to acts to which our Constitution 
requires application of  the highest standard -- the act of engaging 
in free speech.  

In practical terms this amendment would have serious First
Amendment consequences.  Senator Feinstein's provision would make 
it illegal for a company manufacturing fertilizer for demolition 
use by the construction industry to place labels on products they 
sell and ship the material to businesses.  It would also criminalize 
the dissemination of the Washington Post or the New York Times with 
an article about Oklahoma City containing information about bomb 
making.  The provision would further punish the distributors of the 
next sequel to this year's Die Hard movie illegal if it contains 
scenes in which Bruce Willis constructs a bomb.  And, it would 
certainly criminalize volumes of printed -- including the 
Encyclopedia Brittanica -- materials available all over the country 
today in libraries, bookstores, and even at the Government Printing 
Office.

Third, the Amendment would seem to require anyone thinking of 
disseminating any information about explosive materials to prescreen 
the recipients of the materials.  In a country filled with public 
libraries and the Internet, this is impossible and bad public policy.  
For example, this amendment would require the Department of 
Agriculture to question anyone requesting information about the 
explosion of tree stumps for farming purposes. 

Fourth, the amendment would undermine the Attorney General's
Guidelines on General Crimes, Racketeering Enterprise and Domestic 
Security/Terrorism Investigations and significantly expand the FBI's 
power. Under the existing guidelines the FBI may initiate an 
investigation only when the "facts and circumstances reasonably 
indicate" a crime is being contemplated.  The guidelines further 
state that a full investigation may not be commenced based solely 
on activities protected by the First Amendment.  This amendment 
would establish a situation in which the FBI could initiate an 
investigation simply because someone distributed information in 
a newspaper.  The guidelines were established to help the FBI, 
but more importantly to assure the public that their free speech 
and privacy rights are protected.  They should not be undermined.

For more information call
Jill Lesser -- (202) 467-2308 e-mail jlessern@counsel.com
Leslie Harris (202) 467-2390 e-mail laharris@tmn.com

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