-Caveat Lector-
Section-by-Section Analysis of Justice Department draft �Domestic Security
Enhancement Act of 2003,� also known as �PATRIOT Act II�
http://64.176.94.191/article1524.htm
February 14, 2003
To: Interested Persons
From: Timothy H. Edgar, Legislative Counsel
Date: February 14, 2003
Re: 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.
ENDNOTES
[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
Source: ACLU : http://www.aclu.org/SafeandFree/ SafeandFree.cfm?ID=
11835&c=206
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