From: Timothy H. Edgar, ACLU Legislative Counsel
http://educate-yourself.org/cn/patriot2overview31mar03.shtml
February 14, 2003
Section-by-Section Analysis of Justice Department
draft “Domestic Security Enhancement Act of 2003,” also known
as “PATRIOT Act II”
The Department of Justice (DOJ) has been drafting comprehensive anti-terrorism
legislation for the past several months. The draft legislation, dated January
9, 2003, grants sweeping powers to the government, eliminating or weakening
many of the checks and balances that remained on government surveillance,
wiretapping, detention and criminal prosecution even after passage of the
USA PATRIOT Act, Pub. L. No. 107-56, in 2001.
Among its most severe problems, the bill
Diminishes personal privacy by removing checks on government
power, specifically by
Making it easier for the government to initiate surveillance
and wiretapping of U.S. citizens under the authority of the shadowy, top-secret
Foreign Intelligence Surveillance Court. (Sections 101, 102 and 107)
Permitting the government, under certain circumstances, to
bypass the Foreign Intelligence Surveillance Court altogether and conduct
warrantless wiretaps and searches. (Sections 103 and 104)
Sheltering federal agents engaged in illegal surveillance
without a court order from criminal prosecution if they are following orders
of high Executive Branch officials. (Section 106)
Creating a new category of “domestic security surveillance”
that permits electronic eavesdropping of entirely domestic activity under
looser standards than are provided for ordinary criminal surveillance under
Title III. (Section 122)
Using an overbroad definition of terrorism that could cover
some protest tactics such as those used by Operation Rescue or protesters
at Vieques Island, Puerto Rico as a new predicate for criminal wiretapping
and other electronic surveillance. (Sections 120 and 121)
Providing for general surveillance orders covering multiple
functions of high tech devices, and by further expanding pen register and
trap and trace authority for intelligence surveillance of United States
citizens and lawful permanent residents. (Sections 107 and 124)
Creating a new, separate crime of using encryption technology
that could add five years to any sentence for crimes committed with a computer.
(Section 404)
Expanding nationwide search warrants so they do not have
to meet even the broad definition of terrorism in the USA PATRIOT Act. (Section
125)
Giving the government secret access to credit reports without consent and
without judicial process. (Section 126)
Enhancing the government’s ability to obtain sensitive
information without prior judicial approval by creating administrative subpoenas
and providing new penalties for failure to comply with written demands for
records. (Sections 128 and 129)
Allowing for the sampling and cataloguing of innocent Americans’
genetic information without court order and without consent. (Sections 301-306)
Permitting, without any connection to anti-terrorism efforts, sensitive
personal information about U.S. citizens to be shared with local and state
law enforcement. (Section 311)
Terminating court-approved limits on police spying, which
were initially put in place to prevent McCarthy-style law enforcement persecution
based on political or religious affiliation. (Section 312)
Permitting searches, wiretaps and surveillance of United
States citizens on behalf of foreign governments – including dictatorships
and human rights abusers in the absence of Senate-approved treaties. (Sections
321-22) Diminishes public accountability by increasing government secrecy;
specifically, by authorizing secret arrests in immigration and other cases,
such as material witness warrants, where the detained person is not criminally
charged. (Section 201)
Threatening public health by severely restricting access to
crucial information about environmental health risks posed by facilities
that use dangerous chemicals. (Section 202)
Harming fair trial rights for American citizens and other
defendants by limiting defense attorneys from challenging the use of secret
evidence in criminal cases. (Section 204)
Gagging grand jury witnesses in terrorism cases to bar them
from discussing their testimony with the media or the general public, thus
preventing them from defending themselves against rumor-mongering and denying
the public information it has a right to receive under the First Amendment.
(Section 206)
Diminishes corporate accountability under the pretext of fighting
terrorism; specifically, by granting immunity to businesses that provide
information to the government in terrorism investigations, even if their
actions are taken with disregard for their customers’ privacy or other
rights and show reckless disregard for the truth. Such immunity could provide
an incentive for neighbor to spy on neighbor and pose problems similar to
those inherent in Attorney General Ashcroft’s “Operation TIPS.”
(Section 313)
Undermines fundamental constitutional rights of Americans
under overbroad definitions of “terrorism” and “terrorist
organization” or under a terrorism pretext; specifically by stripping
even native-born Americans of all of the rights of United States citizenship
if they provide support to unpopular organizations labeled as terrorist
by our government, even if they support only the lawful activities of such
organizations, allowing them to be indefinitely imprisoned in their own
country as undocumented aliens. (Section 501)
Creating 15 new death penalties, including a new death penalty
for “terrorism” under a definition which could cover acts of
protest such as those used by Operation Rescue or protesters at Vieques
Island, Puerto Rico, if death results. (Section 411)
Further criminalizing association – without any intent
to commit specific terrorism crimes – by broadening the crime of providing
material support to terrorism, even if support is not given to any organization
listed as a terrorist organization by the government. (Section 402)
Permitting arrests and extraditions of Americans to any foreign
country – including those whose governments do not respect the rule
of law or human rights – in the absence of a Senate-approved treaty
and without allowing an American judge to consider the extraditing country’s
legal system or human rights record. (Section 322)
Unfairly targets immigrants under the pretext of fighting
terrorism; specifically by undercutting trust between police departments
and immigrant communities by opening sensitive visa files to local police
for the enforcement of complex immigration laws. (Section 311)
Targeting undocumented workers with extended jail terms for
common immigration offenses. (Section 502)
Providing for summary deportations without evidence of crime,
criminal intent or terrorism, even of lawful permanent residents, whom the
Attorney General says are a threat to national security. (Section 503)
Completely abolishing fair hearings for lawful permanent
residents convicted of even minor criminal offenses through a retroactive
“expedited removal” procedure, and preventing any court from
questioning the government’s unlawful actions by explicitly exempting
these cases from habeas corpus review. Congress has not exempted any person
from habeas corpus -- a protection guaranteed by the Constitution -- since
the Civil War. (Section 504)
Allowing the Attorney General to deport an immigrant to any
country in the world, even if there is no effective government in such a
country. (Section 506)
Given the bipartisan controversy that has arisen in the past from DOJ’s
attempts to weaken basic checks and balances that protect personal privacy
and liberty, the DOJ’s reluctance to share the draft legislation is
perhaps understandable. The DOJ’s highly one-sided section-by-section
analysis reveals the Administration’s strategy is to minimize far-reaching
changes in basic powers, as it did in seeking passage of the USA PATRIOT
Act, by characterizing them as minor tinkering with statutory language designed
to bring government surveillance authorities, detention and deportation
powers, and criminal penalties “up to date.”
This ACLU section-by-section analysis of the text of the legislation,
however, reveals that the DOJ’s modest descriptions of the powers
it is seeking, and the actual scope of the authorities it seeks, are miles
apart. The USA PATRIOT Act undercut many of the traditional checks and balances
on government power. The new draft legislation threatens to fundamentally
alter the constitutional protections that allow us as Americans to be both
safe and free. If adopted, the bill would diminish personal privacy by removing
important checks on government surveillance authority, reduce the accountability
of government to the public by increasing government secrecy, further undermine
fundamental constitutional rights of Americans under an already overbroad
definition of “terrorism,” and seriously erode the right of
all persons to due process of law.
Our detailed section-by-section analysis follows.
Title I – Diminishing Personal Privacy by Removing Checks
on Government Intelligence and Criminal Surveillance Powers
Title I amends critical statutes that govern intelligence
surveillance and criminal surveillance. Both forms of surveillance are subject
to Fourth Amendment limitations. See Katz v. United States, 389 U.S. 347
(1967) (criminal surveillance); United States v. United States District
Court (“Keith”), 407 U.S. 297 (1972) (intelligence surveillance).
Yet while traditional searches are governed by warrant procedures largely
drawn from the common law, wiretapping and other forms of electronic surveillance
are governed by standards and procedures embodied in two federal statutes
that respond to Katz and Keith – Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 28 U.S.C. §§ 2510-22, which governs
surveillance of criminal suspects, and the Foreign Intelligence Surveillance
Act of 1978 (FISA), 50 U.S.C. §§ 1801-63 which governs surveillance
of foreign powers and agents of a foreign power for intelligence purposes.
Making it easier for the government to initiate surveillance
and wiretapping, including of United States citizens and lawful permanent
residents, through the secret Foreign Intelligence Surveillance Court (Sections
101-111). The draft bill’s proposed amendments to FISA attack key
statutory concepts that are critical to providing appropriate limits and
meaningful judicial supervision over wiretapping and other intrusive electronic
surveillance for intelligence purposes. These limits were approved by Congress
in 1978 because of a history of abuse by government agents who placed wiretaps
and other listening devices on political activists, journalists, rival political
parties and candidates, and other innocent targets. These so-called “national
security wiretaps” and other covert surveillance were undertaken without
any court supervision and without even the slightest suspicion that the
targets of such surveillance were involved in criminal activities or were
acting on behalf of any foreign government or political organization. This
pattern of abuse culminated in the crimes of Watergate, which led to substantial
reforms and limits on spying for intelligence purposes.
FISA represented a compromise between civil libertarians,
who wanted to ban “national security wiretaps” altogether, and
apologists for Presidential authority, who claimed such unchecked intelligence
surveillance authority was inherent in the President’s Article II
power over foreign relations. The Congress chose to authorize intelligence
wiretaps without evidence of crime, subject to a number of key restraints.
One of these restraints, separating intelligence gathering from criminal
investigations, has been significantly weakened by the USA PATRIOT Act.
The USA PATRIOT Act abolished the “primary purpose” test –
the requirement that FISA surveillance could only be used if the primary
purpose of surveillance was gathering of foreign intelligence, and not criminal
prosecution or some other purpose.
The draft bill eliminates or substantially weakens a number
of the remaining constraints on intelligence surveillance approved by Congress.
Taken as a whole, these changes go a long way to undermine limits on intelligence
surveillance essential to preserving civil liberties and to preventing a
repeat of the wiretapping abuses of the J. Edgar Hoover and Watergate eras.
Authorizing the government to initiate wiretaps and other
electronic surveillance on Americans who have no ties to foreign governments
or powers (sec. 101). This section would permit the government to obtain
a wiretap, search warrant or electronic surveillance orders targeting American
citizens and lawful permanent residents even if they have no ties to a foreign
government or other foreign power. Under FISA, the government need not show,
in many circumstances, probable cause that the target of a wiretap is involved
in any criminal activity. FISA requires an alternate showing – probable
cause that the target is acting on behalf of a foreign government or organization,
i.e., a “foreign power.” Section 101 of the draft bill eliminates
this requirement for individuals, including United States citizens, suspected
of engaging in “international terrorism.” It does so by redefining
individuals, including United States citizens or lawful residents, as “foreign
powers” even if they are not acting on behalf of any foreign government
or organization. The “foreign power” requirement was a key reason
FISA was upheld in a recent constitutional challenge. See In re Sealed Case
No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev.
Nov. 18, 2002) (while FISA requires no showing of probable cause of crime,
it is constitutional in part because it provides “another safeguard
. . . that is, the requirement that there be probable cause to believe the
target is acting ‘for or on behalf of a foreign power.’”)[1]
Permitting surveillance of the lawful activities of United
States citizens and lawful permanent residents if they are suspected of
gathering information for a foreign power (sec. 102). United States citizens
and lawful permanent residents who are not violating any law should not
be subject to wiretapping or other intrusive electronic surveillance. The
FISA contains dual standards for non-U.S. persons and for U.S. persons with
respect to surveillance of “intelligence gathering activities,”
i.e., the gathering of information for a foreign government or organization.
These standards reflect the judgment of Congress that U.S. persons should
not face electronic surveillance unless their activities “involve
or may involve” some violation of law (as, for example, would certainly
be the case with respect to any activity in furtherance of terrorism or
other crime). For non-U.S. persons, this showing does not have to be made,
i.e., the gathering of information by foreign persons for foreign powers
is enough to trigger FISA. The draft bill (at section 102) applies the lower
standard to U.S. persons.
Lawful gathering of information for a foreign organization
does not necessarily pose any threat to national security. This amendment
would permit electronic surveillance of a local activist who was preparing
a report on human rights for London-based Amnesty International, a “foreign
political organization,” even if the activist was not engaged in any
violation of law. By eliminating this need to show some violation of law
may be involved before authorizing surveillance of U.S. persons, Congress
could well succeed in rendering FISA unconstitutional, by eliminating another
key reason FISA was upheld in a recent court challenge. See In re Sealed
Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of
Rev. Nov. 18, 2002) (holding that FISA surveillance of U.S. persons meets
Fourth Amendment standards in part because a surveillance order may not
be granted unless there is probable cause to believe the target is involved
in activity that may involve a violation of law).
Permitting the government, under some circumstances, to bypass
the Foreign Intelligence Surveillance Court altogether (Sections 103, 104).
Section 103 gives the Attorney General the power to authorize intelligence
wiretaps and other electronic surveillance without permission from any court,
including the Foreign Intelligence Surveillance Court, for fifteen days,
after an attack on the United States or force authorization resolution from
the Congress. Under existing federal statutes, a formal declaration of war
by the Congress triggers a host of civil liberties consequences, including
authorization by the Attorney General to engage in intrusive electronic
surveillance for up to fifteen days without any court order at all. The
draft bill expands this power dramatically by eliminating judicial review
for any surveillance under FISA for a period up to fifteen days pursuant
to (1) an authorization of force resolution by the Congress or (2) a “national
emergency” created by an attack on the United States. For surveillance
under the latter circumstance, no action by Congress would be required.
Once the President has unilaterally decided such an attack has occurred,
the Attorney General could unilaterally decide what constitutes an “attack”
on the United States, creating an emergency that justifies what would otherwise
be plainly illegal wiretaps.
DOJ’s rationale for this change is that declarations
of war are rare and the statute should be updated to reflect this. This
argument fundamentally misconstrues the purpose of this provision. The normal
FISA process, including review by the Foreign Intelligence Surveillance
Court, was Congress’s attempt to impose meaningful limits over national
security surveillance conducted without a formal declaration of war and
for continuing threats that cannot easily by defined by reference to traditional
war powers. To use Congress’ grant of surveillance authority following
a declaration of war as an argument to permit surveillance even in the absence
of such action by Congress is a fundamental intrusion on Congress’s
war powers.
The draft bill (at section 104) also expands special surveillance
authority, available for up to a year with no court order at all, for property
“under the open and exclusive control of a foreign power” by
permitting eavesdropping on “spoken communications.” This expansion
of authority leaves intact the current requirement that such surveillance
can go forward only if the Attorney General certifies under oath that “there
is no substantial likelihood that the surveillance will acquire the contents
of any communication to which a United States person is a party.”
Still, the new authority would plainly involve eavesdropping on communications
protected by the Fourth Amendment, as it would inevitably result in listening
– without any court order – to the conversations in the United
States of anyone who might be using telephones, computers, or other devices
owned by a foreign government, political organization, or company owned
by a foreign government.
There are serious questions about whether the secret review
of surveillance orders by the Foreign Intelligence Surveillance Court, which
by its nature can only hear the government’s side of the case, is
effective in protecting Americans’ civil liberties. These amendments
would bypass judicial review under FISA altogether.
Sheltering federal agents engaged in illegal surveillance
without a court order from criminal prosecution if they are following orders
of high Executive Branch officials (Section 106). This section would encourage
unlawful intelligence wiretaps and secret searches by immunizing agents
from criminal sanctions if they conduct such surveillance, even if a reasonable
official would know it is illegal, by claiming they were acting in “good
faith” based on the orders of the President or the Attorney General.
In order to ensure that FISA was successful in bringing national security
surveillance under the rule of law, Congress not only provided a process
for legal intelligence surveillance, but also imposed criminal penalties
on any government agent who engages in electronic surveillance outside that
process. Congress also provided a “safe harbor” for agents who
engaged in surveillance that was approved by the Foreign Intelligence Surveillance
Court, even if such surveillance was not in fact authorized by FISA. The
draft bill (at section 106) substantially undercuts the deterrent effect
of criminal sanctions for illegal wiretaps or electronic surveillance by
expanding the “safe harbor” to include surveillance not approved
by any court, but simply on the authorization of the Attorney General or
the President.
Of course, the very spying abuses FISA was designed to prevent
were undertaken with the authorization of high-ranking government officials,
including the President. For example, President Nixon authorized just such
a covert search of the Brookings Institution, whom he and his staff suspected
of possessing classified information that had been leaked to the press.
As described by Nixon biographer Richard Reeves:
Nixon sat up. “Now if you remember Huston’s plan
[to engage in covert surveillance] . . .”
“Yeah, why?” Haldeman said.
Kissinger said: “But couldn’t we go over? Now,
Brookings has no right to classified–”
The President cut him off, saying, “I want it implemented.
. . . Goddamit get in there and get those files. Blow the safe and get them.”[2]
Any government official acting within the scope of his employment
already enjoys “qualified immunity” from charges of violating
Fourth Amendment or other constitutional rights – i.e., an official
cannot be punished or held civilly liable if a reasonable government official
would not have known his or her conduct was illegal. See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Providing additional protection to government
officials who engage in wiretaps or searches without a court order, where
a reasonable official would know those wiretaps or searches were clearly
illegal, would take away any incentive for such officials to question an
illegal authorization by the President, Attorney General or other high official.
Further expanding pen register and trap and trace authority
for intelligence surveillance of United States citizens and lawful permanent
residents beyond terrorism investigations (Section 107). This section allows
the government to use intelligence pen registers and trap and trace surveillance
devices to obtain detailed information on American citizens and lawful permanent
residents, including telephone numbers dialed, Internet addresses to which
e-mail is sent or received, and the web addresses a person enters into a
web browser, even in an investigation that is entirely unrelated to terrorism
or counterintelligence. In so doing, it erodes a limitation on this authority
that was part of the USA PATRIOT Act.
The standard for obtaining a pen register or trap and trace
order is very low, requiring merely that a government official certify that
the information it would reveal is “relevant” to an investigation.
Under section 216 the USA PATRIOT Act, the government was given new power
to obtain this sensitive information for Internet communications merely
by making this certification. This expansion was a serious erosion of meaningful
judicial oversight of government surveillance because it expanded the authority
to get court orders for pen registers and trap and trace devices in a way
that permitted the government to access far more detailed content than was
available before such authority was extended to the Internet.
For United States citizens and lawful permanent residents,
Congress limited the new authority to terrorism and counterintelligence
investigations. This section would remove that limitation, opening the door
to expanded government surveillance of United States citizens and lawful
permanent residents under controversial government law enforcement technologies
like CARNIVORE and the Total Information Awareness Pentagon “super-snoop”
program whose development Congress just voted to limit.
Providing cleared, appointed counsel for the Foreign Intelligence
Surveillance Court of Review (Section 108). While we welcome the provision
providing for an appointed, cleared counsel to argue in favor of a ruling
of the Foreign Intelligence Surveillance Court when the government appeals
its decisions, it should not substitute for participation, in appropriate
cases, by interested civil liberties organizations. The Foreign Intelligence
Surveillance Court approves government orders for electronic surveillance
and physical searches under FISA. It meets in secret and never hears from
anyone other than the government officials seeking its approval. If an order
is denied, the government has the right to seek review of that denial in
a special three-judge court of appeals, called the Foreign Intelligence
Surveillance Court of Review. No one can appeal the approval of a surveillance
order, as the target of the surveillance is not notified. Instead, the only
challenge to an approved order would occur later, if the information obtained
is to be used in a criminal prosecution, in a suppression motion before
the district court. If the information is used only for intelligence purposes,
there is never an opportunity to challenge the lawfulness of an order approving
surveillance.
This section seeks to remedy the problems inherent in a one-sided
proceeding, at least with respect to appeals before the Court of Review,
by permitting the court to appoint an advocate with security credentials
to defend the decision reached in the initial hearing before the Foreign
Intelligence Surveillance Court. While the ACLU welcomes this effort to
inject an adversary process into the Court of Review’s proceedings,
it warns that appointing a cleared lawyer should not be a substitute for
independent advocacy by civil liberties or other interested organizations.
Organizations independent of the government should be permitted to file
briefs amicus curiae and, in appropriate cases, to participate in oral argument
as interveners on behalf of Americans who may face increased surveillance
as a result of an interpretation of FISA being urged by the government.
For this reason, Congress should adopt legislation providing clear procedures
that require the publication of opinions by the Foreign Intelligence Surveillance
Court and the Court of Review, with redactions for classified information.
Providing new contempt powers for Foreign Intelligence Surveillance
Court without sufficient due process (Section 109). This section seeks to
give the Foreign Intelligence Surveillance Court the power to enforce its
judgments through explicit contempt powers. While the ACLU does not object
to the enforcement of lawful court orders, the draft bill does not specify
a means by which parties seeking to challenge an order of the court can
vindicate their rights, such as by a motion to quash. If the court is to
be given this authority, both the Fourth Amendment and due process require
a mechanism, which currently does not exist, for a party facing a possible
contempt sanction to appear before the Foreign Intelligence Surveillance
Court and be heard, prior to the imposition of any sanctions.[3]
Using an overbroad definition of terrorism that could cover
tactics used by some protest groups as a predicate for criminal wiretapping
and other surveillance under Title III (Sections 120, 121). Current law
provides, at 18 U.S.C. § 2516, a list of “predicate offenses”
that permit the government to conduct wiretaps and other intrusive surveillance.
The list is quite lengthy, but reflects the judgment of Congress that electronic
surveillance is a particularly intrusive investigative method that is not
appropriate for all criminal investigations but should be reserved only
for the most serious crimes.
Title 18 already provides that any terrorism crime defined
by federal law is a predicate for Title III surveillance. See 18 U.S.C.
§ 2516(q) (providing that any violation of sections 2332, 2332a, 2332b,
2339A, or 2339B is a predicate offense for Title III surveillance). The
draft bill, however, extends the predicate even further, to cover offenses
that are not defined as terrorism crimes under federal law, but do fit the
definition of either international or domestic terrorism, i.e., they involve
acts that are a violation of federal or state law, are committed with the
intent of affecting government policy, and are potentially dangerous. See
18 U.S.C. § 2331. It is this broad definition that sweeps in the activities
of a number of protest organizations that engage in civil disobedience,
including People for the Ethical Treatment of Animals and Operation Rescue.
Since true crimes of terrorism are already predicates for Title III surveillance,
providing this authority is not necessary to listen to the telephone conversations
and monitor the e-mail traffic of terrorist groups. To ensure Title III
wiretaps are not used to monitor the activities of protest organizations,
Congress should reject this provision and should also amend the definition
of “terrorism.”
Creating a new category of “domestic security surveillance”
that relaxes judicial oversight of electronic surveillance of Americans
engaged in entirely domestic activity (Section 122). This section authorizes
looser standards for judicial oversight of wiretaps of electronic surveillance
orders of Americans for entirely domestic activity under a new theory of
domestic intelligence gathering. Intelligence-based surveillance and criminal
surveillance are conducted under different rationales, but both are subject
to Fourth Amendment protections. See Katz and Keith, supra. Title III, which
governs criminal surveillance, provides significantly more robust protections
than those afforded for surveillance of foreign intelligence conducted in
the United States pursuant to FISA. Title III requires more frequent and
continuing supervision of the surveillance order by the authorizing judge,
and subsequent notice to the target of the surveillance order unless the
government shows adverse results would occur if notice were given.
Title III governs electronic surveillance in domestic criminal
and terrorism cases; the looser intelligence standards provided by FISA,
including the ability to conduct surveillance in virtually complete secrecy,
have always been reserved for “agents of a foreign power.” The
proposed amendment would fundamentally redefine domestic intelligence gathering
through wiretaps and other intrusive surveillance to include entirely domestic
security investigations. In so doing, DOJ claims it is accepting the “invitation”
of the Supreme Court in Keith to devise specific standards for domestic
intelligence investigations. It is far from clear the Supreme Court ever
issued such an “invitation” because of the ambiguity of the
term “domestic intelligence.” FISA is, in one sense, a purely
domestic intelligence gathering power; it governs gathering of intelligence
on United States soil and authorizes surveillance of United States citizens.
Under this understanding of “domestic intelligence,” Congress
has already provided far looser standards for such surveillance than it
has for criminal investigations.
In any event, the draft bill’s redefinition of intelligence
creates what is in essence a twilight zone between the criminal standards
provided in Title III and the foreign intelligence standards for targets
involved with “foreign powers” in FISA. That twilight zone,
as conceived by the draft bill, has significant implications for Americans’
right to privacy. Under the DOJ’s proposed standards, for domestic
terrorism, the normal time period for domestic surveillance orders under
Title III would triple from 30 days to 90 days, or, in the case of pen registers
and trap and trace devices, from 60 days to 120 days; the judge would be
prevented from requiring more frequent reports than once every 30 days,
limiting the judge’s ability to provide meaningful supervision, and
absolute secrecy could be imposed on the government’s claim of harm
to the “national security,” a standard that provides no meaningful
judicial check.
Providing for general surveillance orders covering users of
high technology devices with multiple functions, thus lowering the bar to
surveillance (Section 124). This section would, in some cases, relieve the
government from showing probable cause that would justify reading a person’s
e-mail if it had shown probable cause that a person’s telephone conversations
would be relevant to criminal activity. It authorizes a general warrant
that, in the physical world, would allow officers who could show probable
cause to search only one drawer of a desk to obtain a court order allowing
a search of the entire building.
The proposed change would erode the privacy rights of users
of multi-function devices. Multi-function devices represent an important
advance in communications technology. Such devices can combine the functions
of a telephone, fax machine and computer with Internet access, or those
of a mobile phone and text messaging service. Another example is the popular
TiVo video storage device which both records television programs received
through a cable or satellite system and communicates a user’s preferences
through a computer modem.
Unfortunately, the draft bill continues a DOJ trend of using
advances in technology to justify eroding privacy standards. While technology
is constantly changing, the principles of the Constitution remain constant.
Specificity is a basic requirement for any constitutional judicial process
permitting government searches or seizures. The Fourth Amendment states
that “no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” The fact that the government
can show probable cause to monitor e-mail, for example, does not mean that
it should also have authority to listen to the target’s telephone
conversations. Of course, if the government can satisfy the probable cause
or other application standard with respect to all of the functions of a
device, there is no reason it cannot be granted approval to monitor those
functions in a single order. However, the draft bill would make approval
for each function automatic, providing that “communications transmitted
or received through any function performed by the device may be intercepted
and accessed unless the order specifies otherwise . . .”
In addition, an order that covers, for example, a personal
computer that carries voice or data transmission, also permits “upon
a showing as for a search warrant . . . the retrieval of other information
(whether or not constituting or derived from a communication whose interception
the order authorizes).” While somewhat oblique, this language would
permit the seizure of any information stored on a computer’s hard
drive if the government obtains a order to intercept communications through
any of the computer’s communications functions and makes the required
showing.
There is no reason that the purchase of new technology should
diminish the user’s privacy. Whether one owns one device with several
communications functions, or separate communications devices, the government’s
obligations to show probable cause that the monitoring of communications
or the seizure of data will provide some evidence of crime should be the
same.
Expanding nationwide search warrants so they do not have to
meet even the broad definition of terrorism in the USA PATRIOT Act (Section
125). The USA PATRIOT Act gave the government authority to issue nationwide
search warrants in terrorism investigations, based on the extremely broad
definition of domestic and international terrorism contained in 18 U.S.C.
§ 2331. This definition covers any violation of law, state or federal,
that involves “acts dangerous to human life” and is committed
with the requisite intent. The draft bill (at section 125) expands the use
of nationwide search warrants to cover any offense listed as a federal terrorism
crime under 18 U.S.C. § 2332b(g)(5)(B). In general, this is unlikely
to be needed as the crimes listed as terrorism crimes are either violent
offenses or at least “involve” dangerous acts. To the extent
such offenses do not at least “involve” violence or dangerous
acts, they should not be terrorism crimes at all and should not trigger
special terrorism powers that are unavailable in order criminal investigations.
If Congress grants additional authority for nationwide search warrants for
certain offenses listed as terrorism crimes, its authority to get nationwide
search warrants under an overbroad definition of international and domestic
terrorism should be curtailed, by, for example, eliminating that authority
or amending the definition of terrorism.
Giving the government secret access to credit reports without
consent and without judicial process (Section 126). This section would allow
the government to secretly obtain anyone’s credit report without their
consent and without any judicial procedure.
The government should not have access to sensitive personal
information which has been collected for business purposes on the same basis
as businesses, because the government’s powers – for example,
to compel questioning before a grand jury, arrest, deport, or incarcerate
– are far greater than the powers of any business.
In any event, the draft bill does not, as the heading states,
provide “equal access” for government to such reports; rather,
the statute greatly expands access to credit reports by authorizing the
government to obtain these reports without consent, notice to the person
to whom the credit report pertains, and without a court order. Credit reports
are available to business with a “legitimate business need”
but only with the consent of the person whose credit report is being examined,
such as when that person applies for a loan or a job.
Anyone who has applied for a job or a mortgage and encountered
a problem because of a false credit report – which could the result
of identity theft, simple error, or malice – knows how difficult it
can be to get errors corrected. Under this provision, however, the consequences
of an erroneous credit report are far more serious than when credit reports
are used for business purposes. Under this provision, because credit reports
can be obtained without notice or consent, there is no opportunity for the
person to contest an erroneous report.
Creating new terrorism “administrative subpoenas”
and providing new penalties for failure to comply with written demands for
records that permit the government to obtain information without prior judicial
approval (Sections 128 and 129). Under these sections, government can demand
– and enforce its demands through civil and criminal penalties –
documents and other information from a business, such as an Internet Service
Provider, or any individual without prior court approval. Administrative
subpoenas provide the government with the ability to compel production of
documents or information without obtaining a court order. While such subpoenas
can be challenged, after they are issued, through a motion to quash, such
a motion must be brought by the party challenging the subpoena, who incurs
the trouble and expense of challenging the subpoena.
The draft bill authorizes the use of administrative subpoenas
and what the DOJ calls “national security letters” to obtain
information in terrorism investigations. These sections reduce judicial
oversight of terrorism investigations by relegating the role of the judge
to considering challenges to orders already issued, rather than ensuring
such orders are drawn with due regard for the privacy and other interests
of the target. Furthermore, by granting the government power to compel production
of records or other information, such as computer files, without first going
to court, the draft bill will likely increase the administrative burden
imposed on small businesses, particularly high-technology firms, who are
facing ever-increasing demands for records in both civil cases and criminal
investigations.
Title II – Diminishes Public Accountability and Due
Process By Increasing Government Secrecy
Authorizing secret arrests in immigration and other cases
where the detained person is not criminally charged (Section 201). After
September 11, 2001, well over a thousand persons whom the government said
were connected to its terrorism investigation were detained on immigration
charges or material witness warrants without the government revealing who
they were or other basic information about their arrests that has always
been available to the public and the press. Never before had our government
sought to detain persons within the United States in secret; a public process
for depriving any individual of liberty is an essential component of the
rule of law in a democratic society. As Alexander Hamilton made clear in
the Federalist papers more than two centuries ago, a policy that allows
“confinement of the person, by secretly hurrying him to jail, where
his sufferings are unknown or forgotten” is a “dangerous engine
of arbitrary government.”[4] “The requirement that arrest books
be open to the public is to prevent any ‘secret arrests,’ a
concept odious to a democratic society . . . .” Morrow v. District
of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).
The government’s policy of secret arrests came under
fire in both federal and state court in lawsuits brought by the American
Civil Liberties Union and other civil liberties and press freedom groups.
So far, every court to reach the merits of the argument has agreed that
the government’s secret arrests policy is not supported by law, is
not necessary to protect national security, and violates fundamental principles
reflected in state and federal open records laws.[5] When confronted with
the ruling in New Jersey state court, the DOJ responded not by complying
or appealing the ruling to a higher court, but by issuing a regulation preempting
that state’s law. It has now chosen to ask Congress to cut short the
federal lawsuit in the much the same way.
Threatening public health by severely restricting access to
crucial information about environmental health risks posed by facilities
that use dangerous chemicals (Section 202). This section would deprive communities
and environmental organizations of critical information concerning risks
to the community contained in “worst case scenarios” prepared
under federal environmental laws. Under section 112(r) the Clean Air Act,
47 U.S.C. § 7212(r), corporations that use potentially dangerous chemicals
must prepare an analysis of consequences of the release of such chemicals
to surrounding communities. This information is absolutely critical for
community activists and environmental organizations seeking to protect public
health and safety, and the environment, and by ensuring compliance by private
corporations with environmental and health standards and alerting local
residents to the hazards to which they may be exposed.
The proposed amendment (sec. 202) severely restricts access
to such information, limiting such access to reading rooms in which copies
could not be made and notes could not be taken, and excising from the reports
such basic information as “the identity or location of any facility
or any information from which the identity or location of the facility could
be deduced.” “Official users” are given greater access,
but these users only include government officials, and government whistleblowers
who reveal any information restricted under this section commit a criminal
offense, even if their motivation was to protect the public from corporate
wrongdoing or government neglect.
Harming fair trial rights for American citizens and other
defendants by limiting defense attorneys from challenging the use of secret
evidence in criminal cases (Section 204). This section would inhibit the
ability of the accused to defend themselves against criminal charges based
in part on classified information. The Classified Information Procedures
Act (CIPA), 18 U.S.C. App. 3 §§ 1-16, provides a special procedure
to govern an extraordinary situation – where the government seeks
to use information in a criminal case which is classified by Executive Order
without revealing in open court any more information than is necessary to
provide the defendant with a fair trial under the Sixth Amendment.[6]
CIPA entrusts to federal district judges the “gatekeeper”
function of determining what classified information can be excluded from
open court, what information can be given to the defense in summary form,
and what essential information must be disclosed to the defendant to ensure
his right to contest the accusations against him and to ensure that evidence
the jury or other factfinder considers is reliable, having been tested in
an adversarial proceeding. The judge has the power to consider a government
request to delete information or substitute a summary in an ex parte proceeding,
i.e., without the benefit of hearing from the defense. CIPA does not give
the government a right to make its case in the absence of the defense; instead,
the judge determines how much of the prosecution’s submission to examine
ex parte and in camera, i.e., in secret. The proposed amendment (sec. 204)
would seriously undermine the judge’s initial gatekeeping role by
compelling a judge, at the request of the prosecution, to determine whether
and how to redact classified information without the benefit of an adversary
hearing. In other words, the amendment would take away the judge’s
authority, under current law, to hear defense objections to a prosecution
request for authorization to delete specified items of classified information
from documents relevant to the defense’s case.
CIPA strikes the right balance between the government’s
national security interests and the defendant’s right to see the evidence
against him or her. This amendment undermines that balance.
Gagging grand jury witnesses in terrorism from discussing
their testimony with the media or the general public, thus preventing them
from defending themselves and denying the public information it has a right
to receive under the First Amendment (Section 206). This section would gag
grand jury witnesses so that they could not publicly respond to false information
about them leaked to the press. Rule 6(e) of the Federal Rules of Criminal
Procedure imposes a general obligation of secrecy requiring attorneys and
grand jurors to refrain from commenting on “matters occurring before
the grand jury.” In theory, grand jury secrecy is imposed primarily
to protect the reputation of individuals who become subject to a grand jury
investigation. In practice, such secrecy does not always afford much protection,
as law enforcement officials who leak information to reporters in violation
of Rule 6(e) are rarely discovered and prosecuted.
Grand jury secrecy is not imposed on witnesses, who are free
to speak about their testimony to friends, associates or to the media. In
practice, this limitation is essential to afford targets of a grand jury
investigation the opportunity to defend themselves against leaked accusations
and media speculation. Under the proposed amendment (section 206), witnesses
in terrorism investigations could be unfairly smeared in the media and be
deprived from the ability to defend themselves under pain of a criminal
sanction.
Title III – Diminishing Personal Privacy by Removing
Checks on Local Police Spying; Undermining Genetic Privacy; Removing Checks
on Foreign-Directed Searches and Arrests, Even for Dictatorships; Sharing
Sensitive Immigration Information With Local Police
Allowing for the sampling and cataloguing of innocent Americans’
genetic information without court order and without consent (Sections 301-306).
The proposed bill authorizes collection of genetic information of persons
who have not been convicted of a crime for terrorism investigation purposes,
and the entering of that sensitive information into a database. At a minimum,
such collection should not be permitted on persons who have not be convicted
of serious crimes unless a judge decides to permit such collection by issuing
a court order on the basis of probable cause to believe the information
will assist in a criminal investigation. Furthermore, personal genetic information
must be destroyed within a reasonable time, such as when a suspect is cleared,
to ensure it is not available for misuse by the government or private industry
at a later date.
Drawing a DNA sample involves an intrusion on personal privacy
that is far more invasive than simply taking a fingerprint. A fingerprint
is useful only as a form of identification. By contrast, a DNA sample includes
such intimate, personal information as the markers for thousands of diseases,
legitimacy at birth, or (as science advances) aspects of an individual’s
personality such as his or her temperament. In addition, this personal information
is not unique to the individual alone, but also provides clues to the genetic
traits of everyone in that individual’s bloodline. Genetic discrimination
is not merely a distant artifact of the discredited eugenics movement of
the first half of the Twentieth Century, but is widespread today among private
employers, and is (in most states) perfectly legal.[7]
The potential misuse of DNA information contained in a database
requires careful safeguards before such information is collected, and concerning
the storage of such information. For example, no forensic purpose is served
by saving the DNA itself, as opposed to just the information contained in
the DNA that proves identity. The proposed legislation fails to include
such safeguards.
Permitting, without any connection to anti-terrorism efforts,
sensitive personal information to be shared with local and state law enforcement;
opening sensitive visa files to local police (Section 311). This section
would authorize the sharing of sensitive consumer credit information and
educational records with state and local officials without any limits and
without any connection to a terrorism investigation. While sharing of sensitive
information in the possession of the federal government should be permitted
in some circumstances to accomplish anti-terrorism objectives, such records
should not be disseminated broadly for other purposes. The draft legislation
contains no requirement that sharing of sensitive information with state
and local officials be limited to anti-terrorism investigations; instead,
such information can be shared simply “to assist the official receiving
that information in the performance of official duties of that official.”
Special authority to share sensitive personal records should not be granted
so blithely.
The draft legislation also provides for sharing of sensitive
visa information with state and local officials, including state and local
law enforcement, on a broad basis, without requirement that such sharing
of information be connected to anti-terrorism investigations. In authorizing
such sharing of sensitive immigration files, DOJ is at odds with the views
of many state and local police departments, who fear involvement in immigration
enforcement matters may undermine their ability to establish the trust and
confidence of immigrant communities. Absent such trust, many local and state
police are concerned that members of immigrant communities will fear contacting
the police if they are a victim of crime or a witness to crime.[8]
DOJ also appears to be at odds with the White House, which
has assured the public that the Bush Administration was not interested in
expanding the role of state or local law enforcement in immigration matters
except with respect to terrorism investigations. As White House Counsel
Alberto Gonzalez made clear last year, “Only high-risk aliens who
fit a terrorist profile” would be placed in the National Crime Information
Center (NCIC) database, which is available to state and local law enforcement
officials, and the Administration’s conclusion that state and local
police had “inherent authority” to arrest such persons was limited
to this group of non-citizens.[9] Such a narrow policy would be completely
undermined by the adoption of this broad language.
Terminating court-approved limits on police spying designed
to prevent McCarthy-style law enforcement persecution based on political
or religious affiliation (Section 312). In the name of “intelligence
gathering,” police departments in many cities spied on innocent members
of the public who were active in churches, community groups and political
organizations. Federal courts, responding to civil rights lawsuits urging
an end to such spying, issued decrees prohibiting this spying absent some
reason to believe those individuals were involved in criminal or terrorist
activity.
Police spying on political and religious activity is not a
relic of some distant past. Recently, citizens in Denver, Colorado, were
shocked to learn that the Denver Police Department had kept approximately
3,048 illegal files on peaceful protest groups including Amnesty International
and the Nobel Peace Prize-winning American Friends Service Committee. The
file on the American Friends Service Committee labeled them a “criminal
extremist” group. The files pre-dated September 11, 2001, and were
not collected as a response to the terrorist attacks.
The draft bill ends these decrees using language patterned
after the Prison Litigation Reform Act. Eliminating these sensible, court-approved
limits on local police spying would chill dissent, making Americans afraid
to join protest groups and activist organizations, attend rallies, or express
their views on controversial policies such as abortion or the war in Iraq.
Loosening sensible protections on police monitoring of political
and religious activity will not make us safer from terrorism. During the
years the FBI illegally spied on individuals exercising their rights under
the First Amendment, including such civil rights leaders as Dr. Martin Luther
King, Jr., resources were diverted and not a single instance of violence
was prevented. Freeing local police to spy on innocent individuals is not
likely to be any more productive. It only makes us less safe as resources
are diverted from more productive investigations, and less free, as individuals
find themselves entered into a police database for activities that are constitutionally
protected.
Granting immunity to businesses that provide information to
the government in terrorism investigations, even if their actions are taken
with disregard for their customers’ privacy or other rights and show
reckless disregard for the truth (Section 313). This section would prevent
a person harmed by a business’s disclosure of information about them,
including false information, from holding the business accountable. It would
encourage false terrorism tips that could result in ruined reputations,
lengthy detentions and even violence. Under this section, a business is
given immunity from liability if it shares information voluntarily with
the government, based on merely on its “reasonable belief” that
its actions would help the government prevent or investigate terrorism.
This section resurrects many of the same problems with Operation
TIPS that led Congress to ban that program last year. Enormous controversy
was sparked by the Bush Administration’s Operation TIPS plan to enlist
businesses with access to private homes or otherwise able to obtain sensitive
personal information without any court supervision. Under the plan, utility
operators or others would be encouraged to report “suspicious activity”
through a special federal hotline, where the reports would be placed in
a central computer database. The program was rife with potential for abuse,
including the reporting of false or erroneous information, and the concern
that businesses and private individuals would allow their private prejudices
to determine who qualifies as “suspicious.” When Congress learned
of “Operation TIPS” and considered its potential dangers, it
banned the program in legislation creating the new Department of Homeland
Security. See Homeland Security Act of 2002, § 880, Pub. L. No. 107-296,
116 Stat. 2135, 2245 (2002).
The draft legislation poses many of the same dangers as the
government’s earlier, more elaborate private spying program. False
information can ruin a person’s reputation, lead to an erroneous arrest
and even to violence. Those who are subject to such false reports should
have legal recourse if the business or individual responsible for making
the report acted irresponsibly. Defamation is the most likely legal action
resulting from a false tip to law enforcement. Further protection for defamation
defendants would weaken the incentive for a business to think twice before
using a false tip to law enforcement to settle a private score or indulge
in invidious discrimination. The proposed language paradoxically would increase
the incentive for reports of information of dubious validity, diverting
law enforcement from more serious potential crimes.
Granting additional immunity is unnecessary because there
is already ample protection in state law against frivolous lawsuits. Truth
is always a defense to defamation and states also generally provide a qualified
privilege against defamation claims involving reports to law enforcement
even where the information proves to be false, protecting a defendant against
liability unless malice can be shown. See, e.g., Restatement (Second) of
Torts §§ 598, 600.
Permitting searches, wiretaps and surveillance of United States
citizens on behalf of foreign governments – including human rights
abusers – in the absence of Senate-approved treaties (Sections 321-22).
This section would authorize the DOJ to help foreign governments –
including those that systematically abuse human rights and do not respect
the rule of law – invade Americans’ privacy even when the United
States Senate has failed or refused to approve a treaty allowing such assistance
with such a government. Under current law, the United States does not engage
in covert surveillance or issue search warrants on behalf of foreign nations
unless the Senate has approved a mutual legal assistance treaty. If a foreign
nation with which the United States does not have such a treaty requires
information from a United States citizen or resident for its own judicial
process, it may still obtain that information by asking the assistance of
a United States district court in issuing an order to take testimony or
obtain “a document or other thing” under 28 U.S.C. § 1782,
but it may not issue search warrants or certain surveillance orders. This
limitation ensures that that the Senate consents to more intrusive surveillance
on behalf of a foreign nation before Americans’ privacy can be invaded
at the behest of a foreign government. The draft bill (at section 321) sweeps
aside this sensible limitation altogether.
These limitations on foreign-directed searches, wiretaps and
surveillance orders do not need to substantially impede the investigation
and prosecution of terrorism, as Congress has provided “universal
jurisdiction” over many serious terrorism offenses. In other words,
such offenses are a crime under United States law and subject to U.S. jurisdiction
even if committed in a foreign nation. For such offenses, a United States
Attorney could obtain the full panoply of searches and surveillance orders
to aid in the investigation of that crime, even if such a crime was also
being investigated by a foreign nation under its own laws. Such information
could then easily be shared with the foreign nation, under information sharing
provisions approved by Congress in the Homeland Security Act. See Homeland
Security Act of 2002, §§ 891-99, Pub. L. No. 107-296, 116 Stat.
2135, 2252-58.
Permitting arrests and extraditions of United States citizens
and other persons to a foreign country in the absence of a Senate-approved
treaty and without judicial inquiry into the extraditing country’s
human rights record (Section 322). Among other things, this section allows,
on the determination of the Attorney General, a United States citizen or
other person to be sent to a foreign dictatorship to be prosecuted even
if an American judge would find that the extradition request was made on
account of his or her race, nationality or political opinions. It allows
the government to send Americans and others abroad to face foreign criminal
charges in foreign criminal courts for a host of charges without any of
the protections that normally appear in Senate-approved extradition treaties,
and strips any judge hearing an extradition request of the authority to
consider the fairness of the requesting country’s judicial system
or its human rights record.
Section 322 authorizes extradition in the absence of an extradition
treaty or in excess of limits imposed by existing extradition treaties.
Extradition involves arresting an individual, including a United States
citizen, because a foreign government accuses that person of violating a
foreign law. It is subject to basic constitutional limitations. See, e.g.,
Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (holding
that extradition may take place only in accordance with law because of “the
fundamental consideration that the Constitution creates no executive prerogative
to dispose of the liberty of the individual”). One important safeguard
that protects Americans from facing trial in a potentially unfriendly nation,
or in a nation that does not respect fundamental fair trial principles or
abuses human rights, is the requirement that such extradition take place
where the Senate has, by ratifying an extradition treaty, approved of the
practice of a foreign nation sufficiently to permit such extradition.
Another, critical safeguard is the requirement of judicial
supervision of extradition requests. This section expressly prohibits the
judge from considering any of the following:
“humanitarian concerns,”
“the nature of the judicial system of the requesting foreign government,”
and
“whether the foreign government is seeking extradition of a person
for the purpose of prosecuting or punishing the person because of race,
nationality or political opinions of that person.”
Under this legislation, an American can be sent abroad to face trial under
before the courts of a foreign dictatorship, and an American judge has no
ability under the statute to even inquire as to the fairness of that country’s
court system or the reasons behind its criminal accusations.
Current basic due process and constitutional limits on extradition
do not need to substantially impede the prosecution of terrorism, as Congress
has provided “universal jurisdiction” over many serious terrorism
offenses. In order words, such offenses are a crime under United States
law even if committed in a foreign nation. For such offenses, a United States
Attorney could charge a person suspected of a terrorism crime committed
in a foreign nation if the United States lacked an extradition treaty.
Title IV –Undermining Fundamental Constitutional Rights
Of Americans Under Overbroad Definitions Of “Terrorism” And
“Terrorist Organization”; Reducing Due Process in Administrative
Proceedings for Pilots; Undermining Financial Privacy and Due Process
Further criminalizing association – without any intent
to commit specific terrorism crimes – by broadening the crime of providing
material support to terrorism, even if support is not given to any organization
listed as a terrorist organization by the government (Section 402). Under
this section, a person who provides “material support” for “terrorism”
as defined under the USA PATRIOT Act, could face a conviction, and lengthy
prison terms, even if they did not provide any support for an organization
listed as a terrorist organization. The definition of terrorism is not linked
to any specific crimes, but covers all dangerous acts that are a violation
of any federal or state law and are committed to influence government policy.
See 18 U.S.C. § 2331. The definition arguably covers some protest activities,
such as those used by Operation Rescue or by protesters in Vieques Island,
Puerto Rico, as such tactics involve dangerous acts that are a violation
of law and are committed to influence the government.
This section modifies the requirement to the crime of providing
material support for terrorism, 18 U.S.C. § 2339A, which is a separate
crime from providing material support for a designated terrorist organization,
18 U.S.C. § 2339B. Under current law, a person, including an American
citizen, can only be prosecuted for providing material support for terrorism
if the support is provided with the intent to further one of a list of terrorism
crimes. A person can be prosecuted for providing resources to a terrorist
organization that is designated by the government under the much broader
definition of terrorism that arguably covers some protest groups, but only
if such an organization has been designated as an international terrorist
organization by the Secretary of State. See 18 U.S.C. § 2339B. In each
case, the person effectively has some notice that what they are doing is
prohibited: either the activity they support is a crime or the group whose
lawful activities they would support has been publicly designated a terrorist
organization. The amendment takes away this notice by permitting prosecution
for providing support for the activities of an undesignated organization.
Groups such as Greenpeace arguably could be designated an
international terrorist organization, because of the overbroad definition,
but the government has not so designated them. Under this provision, however,
the determination of whether to apply the terrorism definition to protest
groups belongs not with high Executive Branch officials, but to the prosecutor
who chooses to invoke the new criminal definition.
Creating a new, separate crime of using encryption technology
that could add five years or more to any sentence for crimes committed with
a computer (Section 404). Under this section, any federal felony committed
with encryption technology that is now commonly part of computer software
could be punished by an additional five years (or more, for a repeat offense.)
The criminal conduct will not be any different; the only reason for additional
penalties will be that the defendant used a certain technology to commit
the offense. Here again, the DOJ’s description of the crime differs
from the language proposed in the draft text. DOJ says it makes it a separate
federal crime for a person to “knowingly and willfully use[] an encryption
technology to conceal any incriminating communication . . . .” However,
the draft text contains no requirement that the defendant intend to conceal
anything; the crime is complete if the defendant intentionally uses an encryption
technology in the commission of a crime. Thus, a simple fraud crime could,
if committed using garden-variety encryption technology available with most
standard web browsers, carry an additional jail term of up to five years
regardless of whether the defendant intended to conceal his activity by
using encryption.
Shifting burden of proof to defendant to obtain pretrial release
for a laundry list of terrorism crimes (Section 405). Under this section,
the right to bail, protected by the Eighth Amendment, is denied for a host
of crimes said to be likely to be committed by terrorists unless the defendant
is able to overcome the presumption created by the statute. A major reason
for the Constitution’s prohibition against excessive bail is that
defendants are presumed innocent until and unless they have been convicted
in a court of law. Despite this, under certain circumstances, the Constitution
permits pretrial detention. In general, the government must establish, by
clear and convincing evidence, that no release conditions can adequately
ensure the appearance of the defendant at trial or the safety of the community.[10]
There is no reason to exacerbate the constitutional problems
posed by the presumption against pretrial release for some drug crimes by
expanding that presumption to additional crimes. Before the government imprisons
a person who has not been convicted of any crime, the government must bear
the burden of establishing that the defendant is a flight risk or a danger
to the community. This should not be hard to convince a court with respect
to true terrorism defendants; there is no need to apply a pretrial detention
presumption to a laundry list of offenses that are simply said to be likely
to be committed by terrorists.
Imposing potentially life-long supervision and eliminating
statute of limitations for nonviolent crimes listed as terrorism crimes,
even where they create no risk of death or serious injury (Sections 408
and 410). Under section 408, a defendant who has served his or her sentence
for a nonviolent crime listed as a terrorism crime could face life-long
supervision, and possible reincarceration if those supervision conditions
are violated, even if the crime for which he or she was convicted posed
no risk of death or even serious injury. Likewise, section 410 removes entirely
the statute of limitations for such nonviolent offenses. Under the USA PATRIOT
Act, certain severe consequences follow from the commission of certain terrorism
crimes, including the potential for life-long supervision, even after serving
a full criminal sentence. In drafting the USA PATRIOT Act, Congress provided
for a modest and very sensible limitation for such consequences –
they only follow where the offense results in, or creates a foreseeable
risk of, death or serious injury.
Indeed, it is not clear why any offense that would not at
least create a risk of serious injury deserves to be labeled terrorism at
all. The draft bill (at sections 408 and 410) eliminates this sensible restriction,
by applying the severe consequence of lifetime supervision and removal of
the statute of limitations even for crimes which do not create even a risk
of death or serious injury. While DOJ uses the example of a computer crime
causing severe financial damage or the provision of material support to
an organization labeled as terrorist, it does not explain why such actions,
if they truly were serious enough to be considered terrorism under a common
sense rather than a legal definition, would not easily meet the requirement
of causing at least a risk of serious injury.
Creating 15 new death penalties, including a new death penalty
for “terrorism” under a definition which could cover acts of
protest such as those used by Operation Rescue or protesters at Vieques
Island, Puerto Rico, if death results (Section 411). The draft bill dramatically
expands the death penalty, creating fifteen separate new death penalty crimes
by defining a new death sentence that sweeps in the remaining crimes listed
as federal crimes of terrorism in 18 U.S.C. § 2332b(g)(5)(B) that do
not provide for the death penalty. Among others, these include the provision
of material support for the lawful activities of an organization labeled
a terrorist organization by the government, 18 U.S.C. § 2339B. While
the DOJ labels this provision as providing for the death penalty for terrorist
“murders,” there is no language in the text that requires any
showing by the government of an intent by the defendant to kill; it is sufficient
that death results from the defendant’s actions.
Even more troubling, the draft bill is not content to create
fifteen new death penalties, but also contains language that sweeps in any
violation of state or federal law that is committed under the definition
of domestic or international terrorism contained in 18 U.S.C. § 2331.
As a result, activities that (1) involve “acts dangerous to human
life,” (2) are a violation of any state or federal law, and (3) are
committed in order to influence government or the population by intimidation
or coercion become death-penalty eligible if death results. Arguably, this
definition could fit some protest activities, such as those used by Operation
Rescue, People for the Ethical Treatment of Animals, or Greenpeace. For
example:
If protesters at Vieques Island, Puerto Rico, a military bombing
range unpopular with local residents, cut a fence to trespass on the military’s
bombing range, and a bomb killed one of the demonstrators, a prosecutor
could charge the survivors with a eligible crime for which the sentence
could be death.
If Greenpeace activists attempted to block an oil tanker entering a port
to protest the company’s safety record, and a member of the tanker’s
crew drowned attempting to ward off the activists’ boat, the protesters
could be charged with a crime for which the sentence could be death.
If an Operation Rescue anti-abortion demonstration succeeded in blocking
a woman seeking follow-up treatment for complications following her abortion,
and the woman died, the protestors could be charged with a crime the sentence
for which could be death.
Under this provision, protesters could be charged with the death penalty
as the result of a tragedy. While dangerous protest tactics can be punished
under the law, they are not terrorism and should not be treated as if they
were.
Reducing due process for pilots accused of posing a security
threat (sec. 409). While the government has authority to revoke a pilot’s
license on a sufficient showing that the pilot presents a risk to air security,
such denials must be accompanied by a fair opportunity for the accused pilot
to be heard in an administrative hearing and to have judicial review of
any final determination. The draft bill’s procedures for revoking
pilot licenses are deficient in this respect. They do not clearly provide
for an administrative hearing (as opposed to an administrative determination),
and judicial review is provided only through a direct appeal to the United
States Courts of Appeals, who are unlikely to have the time or resources
to conduct a thorough review of the administrative record.
Further undermining privacy in financial transactions and
due process in asset forfeiture and other civil proceedings (subtitle B;
secs. 421-28). Continued amendment of money laundering and asset forfeiture
laws have resulted in a serious erosion of financial privacy and of due
process rights in asset forfeiture and other proceedings. These sections
continue that trend:
Section 421 multiplies by five times the maximum civil penalty
for violating economic sanctions or trade embargoes from $10,000 to $50,000.
This provision would severely penalize the thousands of Americans who travel
to Cuba every year (often without fully appreciating that their travel is
prohibited). It would also penalize physicians or other activists who wish
to protest our sanctions on other countries, such as Iraq, by bringing medicine
or other humanitarian aid to those nations in violation of such an embargo.
Section 422 targets “hawalas” – traditional money transfer
systems used for entirely legitimate reasons in many Muslim cultures –
by undermining key concepts of the money laundering statutes. Under this
provision, money can be deemed “laundered” even if the funds
involved are not proceeds of a crime.
Section 423 further undermines due process for organizations unfortunate
enough to be labeled as “terrorist organizations” by the government,
by depriving them of the ability to defend their status as legitimate charities
in a proceeding to revoke their tax-exempt status.
Section 427 and 428 expand civil asset forfeiture – a procedure rife
with due process problems that the government can use to seize property
without proving that the owner is guilty of any crime and without a pre-seizure
hearing. Under this provision, the assets of a protest group that arguably
fits the USA PATRIOT Act’s overbroad definition of terrorism could
be more easily seized by the government, and the use of secret evidence
is explicitly authorized to permit such seizures.
Title V – Stripping Americans of All Their Rights as U.S. Citizens;
Unfairly Targeting Immigrants Under the Pretext of Fighting Terrorism
Stripping even native-born Americans of all of the rights
of United States citizenship if they provide support for “terrorism,”
allowing them to be indefinitely imprisoned in their own country as undocumented
aliens. (Section 501). This section would permit the government to punish
certain criminal activity by stripping even native-born Americans of U.S.
citizenship, thereby depriving them of any nationality at all and potentially
relegating them forever to imprisonment as undocumented immigrants in their
own country. Among the activities that could be punished this way are providing
material support for an organization – including a domestic organization
– labeled as a terrorist organization by the government, even if the
support was only for the lawful activities of that organization.
The Fourteenth Amendment provides that “All persons
born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they
reside.” While Americans do have the right to give up their citizenship
in the United States, the Constitution does not give Congress any power
to take away from an American his or her status as a citizen even for participating
in crime in time of war. See Trop v. Dulles, 356 U.S. 86 (1958) (conviction
by court martial of crime of desertion during World War II could not constitutionally
lead to loss of citizenship, even though crime was committed voluntarily).
Rather, as the Supreme Court has made clear, every citizen of the United
States enjoys “a constitutional right to remain a citizen . . . unless
he voluntarily relinquishes that citizenship.” Afroyim v. Rusk, 387
U.S. 253 (1967) (citizenship could not be forfeited merely by voting in
foreign election without the requisite intent to abandon U.S. citizenship).
While DOJ is correct to observe that certain voluntary acts,
such as serving in a foreign army, can serve to terminate U.S. citizenship,
these “expatriating acts” must indicate some desire to show
an affinity with a foreign sovereign. Only acts that indicate such a desire
to relinquish American nationality can be made the basis for a finding that
strips an American of his or her citizenship. See Vance v. Terrazas, 444
U.S. 252, 262 (1980).
Moreover, it is the government’s burden to establish
that the expatriating act was committed with the intent of relinquishing
citizenship, a showing this section attempts to short-circuit. See id. at
261 (holding that the “trier of fact must . . . conclude that the
citizen not only voluntarily committed the expatriating act prescribed in
the statute, but also intended to relinquish his citizenship.”) Expatriating
acts are not defined by reference to how repugnant or offensive they are,
or by whether they constitute serious crimes, but by whether they show the
individual has an intent to attach himself or herself to another sovereignty.
Thus, while serving in a foreign army or voting in a foreign election may
indicate an intent to abandon American nationality, the commission of a
series of grisly murders, or the control of a vast criminal enterprise plainly
do not, although the former are legal while the latter are serious crimes.
Providing support to a terrorist organization, which possesses
no sovereignty under international law, is a crime, see 18 U.S.C. §
2339A, but plainly does not indicate that the individual desires to attach
himself or herself to the allegiance of a foreign nation or to abandon U.S.
citizenship in the way that, for example, serving in a foreign army might.
Indeed, expatriation in the draft bill is not even limited to providing
material support to foreign terrorist organizations, as wholly domestic
organizations can be designated as terrorist organizations under 8 U.S.C.
§ 1182(a)(3). In addition, expatriation could result from support of
organizations “engaged in hostilities” against the “national
security interests” of the United States – which could mean
anything -- not just against the United States or its people. Finally, the
draft bill would allow expatriation even for support of the lawful, humanitarian
activities of an organization that the United States has labeled a “terrorist
organization,” which belies DOJ’s analogy of supporting terrorism
by serving in a foreign army engaged in hostilities against the United States.
Targeting undocumented workers with extended jail terms for
common immigration offenses (Sections 502 and 505). Under the pretext of
fighting terrorism, this section – which applies to low-level, garden
variety immigration offenses that have nothing to do with terrorism at all
– unfairly targets undocumented workers. The United States census
revealed that more than seven million undocumented immigrants are living
in the United States. At present, the United States is engaged in negotiations
with Mexico in part to decide whether to permit greater numbers of temporary
workers to come to the United States legally, and whether such a program
would also provide a path to legal status for undocumented Mexicans or other
undocumented immigrants.
Under the pretext of fighting terrorism, this section short-circuits
the national debate over immigration policy by substantially increasing
penalties for a number of very common immigration crimes often committed
by undocumented immigrants. These include unlawful entry (INA § 275(a)(1)),
reentry after removal (INA § 276), and failing to register with the
immigration authorities (INA § 264(e)). The draft bill (at sec. 505)
also provides that the offense of failing to depart after a deportation
order (INA § 243) is a continuing offense – meaning that, in
practice, no statute of limitations will apply. Increasing these penalties
now would almost certainly not prove an effective deterrent to illegal immigration,
as the threat of penalties for illegal immigration has never been sufficient
to outweigh the causes of immigration including the pull of economic opportunity
and the conditions in the home country, but could frustrate our relations
with Mexico and other important U.S. allies seeking to negotiate a new framework
for immigration policy.
Providing for summary deportations, even of lawful permanent
residents, whom the Attorney General says are a threat to national security
(Section 503). Under this provision, any immigrant, including longtime lawful
permanent residents, may be expelled from the United States on the unilateral
determination of the Attorney General that they are a threat to “national
security,” which is defined as “the national defense, foreign
relations, or economic interests of the United States.” INA §
219(c)(2). A person facing removal under this section will be separated
from his or her family and community without ever being able to effectively
answer the government’s true reasons for labeling him or her a security
risk.
Immigrants and other non-citizens involved in terrorism are
deportable under current law,[11] and suspected terrorists are subject to
mandatory detention during any immigration or criminal proceedings.[12]
The purpose of this amendment is to eliminate due process entirely for immigrants,
including lawful permanent residents, accused of crimes or terrorism by
permitting their expulsion merely on the Attorney General’s fiat.
It is based on the fundamentally flawed notion that non-citizens in the
United States do not possess the right to fair treatment under the law,
a notion that the Supreme Court has repeatedly rejected. See Zadvydas v.
Davis 533 U.S. 678, 693 (2001) (reiterating long-standing constitutional
rule that “the Due Process Clause applies to all ‘persons’
within the United States, including aliens, whether their presence here
is lawful, unlawful, temporary, or permanent”).
The proposal is another DOJ initiative that flies in the face
of President Bush’s stated opposition to the use of secret evidence
in immigration proceedings on the basis that fair treatment should be afforded
everyone in America. Under the proposal, a non-citizen, including a lawful
permanent resident, accused of posing a risk to national security could
be detained and deported without having committed any violation of law and
without ever knowing the basis of the accusation against him or her. The
provision would essentially authorize a repeat of the “Palmer raids,”
a discredited episode in the 1920s that involved widespread mass deportations
and widespread abuse of the rights of law abiding Russian and other immigrants
during a wave of anti-immigrant and nativist hysteria.
DOJ originally asked for this summary deportation power shortly
after September 11 in its initial drafts of the USA PATRIOT Act. It was
firmly rejected, on a bipartisan basis, by a Congress deeply concerned about
the use of secret evidence and core due process in immigration proceedings.
It should be rejected again.
Completely abolishing fair hearings for lawful permanent residents
convicted of even minor criminal offenses through a retoractive “expedited
removal” procedure, and preventing any court from questioning the
government’s unlawful actions by explicitly exempting these cases
from habeas corpus (Section 504). Under this new “expedited removal”
provision, any immigrant who was convicted even of a minor criminal offense
long ago could be deported under a special procedure that provides for no
immigration hearing at all and restricts the federal courts from questioning
whether the government’s actions are within the law. The expedited
removal provision, which currently applies only to some classes of undocumented
immigrants, would now apply to all immigrants, including lawful permanent
residents. “Expedited removal” would be available for crimes
which are called “aggravated felonies” (and other crimes) but
can be as minor as a shoplifting offense for which a suspended sentence
of one year or more is imposed. No discretionary relief is available, regardless
of the compelling humanitarian circumstances of any particular case, and
the provision applies retroactively. The provision also unconstitutionally
exempts these cases entirely from habeas corpus, 28 U.S.C. § 2241,
which protects the right of all persons in custody – including immigrants
– to a judicial determination of the legality of the government’s
actions.
In 1996, Congress adopted harsh laws that greatly expanded
the number and types of crimes that could lead to automatic deportation
– i.e., deportation without any possibility to even apply for discretionary
relief from the Attorney General. At that time, DOJ went even further than
Congress, arguing that the law applied retroactively, so that even immigrants
who had been granted relief for crimes committed years or decades earlier
and had turned their lives around would now face automatic deportation.
DOJ also argued that its controversial retroactive interpretation of the
law could not be questioned by any federal court, including the Supreme
Court.
In 2001, the Supreme Court firmly rejected DOJ’s position,
finding both that Congress had not intended the 1996 immigration laws to
apply retroactively and that restrictions on judicial review still left
intact the federal court’s power to correct unlawful government action
through a writ of habeas corpus under 28 U.S.C. § 2241. See INS v.
St. Cyr, 533 U.S. 289 (2001). (“Judicial intervention in deportation
cases is unquestionably required by the Constitution.”) At the same
time, in Congress, a growing number of members of Congress, on both sides
of the aisle, began to reconsider the scope of the 1996 laws, culminating
the decision of the House Judiciary Committee in 2002 to approve H.R. 1452,
the Family Reunification Act, which would restore discretionary relief for
some lawful permanent residents accused of relatively minor offenses, particularly
if they had come to the United States at an early age.
The draft bill would seriously undermine fair treatment of
lawful permanent residents. It would deny fundamental due process in immigration
proceedings by completely eliminating an actual hearing. It would disregard
the Supreme Court’s St. Cyr ruling, stripping the judiciary of its
core functions in such cases.
The provision attempts to insulate the Attorney General’s
“expedited removal” decision from judicial review by taking
a step never taken by Congress since the Civil War – expressly denying
access to habeas corpus, 28 U.S.C. § 2241, to prevent the federal courts
from correcting unlawful actions by the immigration authorities. Because
of the jurisdiction provided by by 28 U.S.C. § 2241, the Supreme Court
in St. Cyr was able to consider the merits and found that Congress had not
intended to apply the 1996 laws retroactively. This court-stripping provision
violates the Constitution, because the Constitution protects habeas corpus
– the Great Writ that keeps detention within the boundaries of the
rule of law.[13]
Expanding the Attorney General’s authority to designate
a country to which an immigrant could be deported, and permitting such deportation
even if there is no effective government in such a country (Section 506).
This section would authorize the Attorney General to dump immigrants ordered
removed in any country in the world, and even to areas which are lawless
and have no governing authority whatsoever. This section would have a devastating
effect on Somalis and other Africans. While the world’s attention
is focused elsewhere, a tragedy of extraordinary proportions has been building
in Africa, where in Somalia, for example, effective government has broken
down as rival armed groups vie for power. For this reason, a federal district
court is now entertaining a plea from Somalis to halt deportations to that
country. The Immigration and Nationality Act does not provide for forced
deportation of anyone to a country or region that lacks any form of government,
nor should it. Deportation should not be a death sentence, as such deportation
could easily become. Nor is it good foreign policy to simply dump into lawless
regions non-citizens ordered removed from the United States because such
a policy that will simply exacerbate the severe challenges facing such areas
of the world.
[1] This and other similarities to criminal wiretap requirements
were essential to the review court’s holding that “FISA as amended
is constitutional because the surveillances it authorizes are reasonable.”
Id. at 56. The ACLU does not agree with that conclusion, but simply notes
that even a court with the broadest view of the government’s surveillance
power has found the requirement that the government show probable cause
that a target is acting for a foreign power is constitutionally based.
[2] Richard Reeves, PRESIDENT NIXON: ALONE IN THE WHITE HOUSE
335 (2001). The plan was apparently not implemented, despite President Nixon’s
order, but certainly contributed to the pattern of abuse that finally lead
to the Watergate break-in and cover up.
[3] In the absence of such a process, a party could well be
barred from challenging the lawfulness of the underlying order in any proceeding
to enforce contempt sanctions. See Walker v. City of Birmingham, 388 U.S.
307, 317 (1967) (holding civil rights marchers could not challenge the lawfulness
of an injunction forbidding a peaceful march in proceedings to enforce contempt
sanctions).
[4] THE FEDERALIST No. 84 (Hamilton) (emphasis in original)
(quoting 1 Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 335).
[5] See American Civil Liberties Union of New Jersey v. County
of Hudson, No. HUD-L-463-02 (N.J. Super. Ct. Law Div. April 12, 2002), rev’d
on other grounds, 779 A.2d 629 (N.J. Super. App. Div. 2002); Center for
National Security Studies v. United States Dep’t of Justice, 215 F.
Supp. 2d 94 (D.D.C. 2002) (appeal pending before D.C. Circuit).
[6] “In all criminal prosecutions, the accused shall
enjoy the right . . . to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; [and] to have compulsory
process for obtaining witnesses in his favor . . . .” U.S. Const.
amend. 6.
[7] See Testimony of Barry Steinhardt, Associate Director
of the American Civil Liberties Union, Before the House Judiciary Committee,
Subcommittee on Crime, March 23, 2000 (reporting an American Management
Association survey in 1997 that reported that six out of ten employers responding
use genetic screening information for employment purposes.)
[8] The National Immigration Forum has posted on its website
a list of statements by local and state police from across the country,
all opposing any attempt to enlist them in the enforcement of immigration
laws. See Opposition to Local Enforcement of Immigration Laws, updated October
1, 2002, available at: http://www.immigrationforum.org/currentissues/articles/100102_quotes.htm
[9] See Letter from White House Counsel Alberto R. Gonzalez
to Migration Policy Institute, June 24, 2002, available at: http://www.migrationpolicy.org/files/whitehouse.pdf
[10] See United States v. Salerno, 481 U.S. 739, 751 (1987)
(holding that pretrial detention is constitutional “[w]hen the Government
proves by clear and convincing evidence that an arrestee presents an identified
and articulable threat to an individual or the community”).
[11] See INA § 237(a)(4)(B) (“Any alien who has
engaged, is engaged, or at any time after admission engages in any terrorist
activity . . . is deportable.”)
[12] USA PATRIOT Act, § 412, Pub. L. No. 107-56, 115
Stat. 321 (2001), codified at INA § 236A.
[13] Another court-stripping provision, in Section 504(d),
would give the government power to deport people before a federal judge
could hear their challenges, even where the law clearly allows judicial
review, by posing serious barriers to the judge's ability to stay deportation
while considering the case. The provision would overturn rulings of four
federal appeals courts that found that the very stringent standard that
applies for a judge to grant a request to stop deportation altogether under
by INA § 242(f)(2) does not apply to a court’s ability to temporarily
delay deportation while it considers the case. See, e.g., Mohammed v. Reno,
309 F.3d 95 (2d Cir. 2002) (on appeal from habeas review of removal order);
Beijani v. INS, 271 F.3d 670 (6th Cir. 2001); Andreiu v. Ashcroft, 253 F.3d
477 (9th Cir. 2001) (en banc); Lal v. Reno, 2000 WL 831801 (7th Cir. June
26, 2000) (unpublished); but see Weng v. Attorney General, 287 F.3d 1335
(11th Cir. 2002). As one court noted, in rejecting the interpretation the
DOJ is now seeking to enact in this legislation, “This would effectively
require the automatic deportation of large numbers of people with meritorious
claims, including every applicant who presented a case of first impression.”
Andreiu, 253 F.3d at 48
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