ACLU Calls New Senate Terrorism Bill Significantly Worse; Says Long-Term Impact on Freedom Cannot Be Justified

The new legislation, which has been significantly rewritten in the last 24 hours, was given to Senate offices today. Senate leaders said they are planning to by-pass Judiciary Committee hearings and mark-up; a floor vote in the Senate could happen as early as next Wednesday.

“”In its rush to legislate, the Senate is abandoning its responsibility to be deliberative and careful,”” Murphy said. “”We urge Senators to insure that any legislation maximizes our security while minimizing the impact on our civil liberties.””

Following are highlights of the civil liberties implications of the compromise legislation introduced by Majority Leader Tom Daschle, D-SD, Minority Leader Trent Lott, R-MS, Judiciary Committee Chairman Patrick Leahy, D-VT, and ranking minority member Orrin Hatch, R-UT. Senators Bob Graham, D-FL, and Paul Sarbanes, D-MD, are also original co-sponsors.

Immigration

The ACLU said that the new bill would confer new and unprecedented detention authority on the Attorney General based on vague and unspecified predictions of threats to the national security.

Specifically, the ACLU said that the new legislation would permit the indefinite administrative detention of non-citizens — including those who win their deportation cases — based merely on the Attorney General’s certification that he has “reasonable grounds to believe” the non-citizen endangers national security. In addition, non-citizens ordered removed to countries that would not accept them could also be indefinitely detained.

“”Very few countries will agree to take back one of their citizens if the United States has labeled him a terrorist,”” Nojeim said. “”Even though it says it has compromised on indefinite detention, under this legislation, the Administration still achieves the same result of being able to imprison indefinitely someone who has never been convicted of a crime.””

In addition, the ACLU said that the legislation provides for no meaningful review of the Attorney General’s certification because the standards for the certification are so vague that judges would have no yardstick for which to judge the appropriateness of the detention. The review could be had only once, not years later while the non-citizen remained detained based on a stale determination by the Attorney General.

Wiretapping and Intelligence Surveillance

On the question of wiretapping and intelligence surveillance, the ACLU said that the wiretapping proposals in the Senate bill continue to sound two themes: they minimize the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification, and they permit use of intelligence investigative authority to by-pass normal criminal procedures that protect privacy.

The ACLU said that it was specifically concerned about the following provisions of the new Senate legislation:

1. The bill would allow the government to use its intelligence gathering power to circumvent the standard that must be met for criminal wiretaps. Currently FISA surveillance, which does not contain many of the same checks and balances that govern wiretaps for criminal purposes, can be used only when foreign intelligence gathering is the primary purpose. The compromise bill would allow use of FISA surveillance authority even if the primary purpose were a criminal investigation. Intelligence surveillance merely needs to be only a “”significant”” purpose.

2. Under current law, a law enforcement agent can get a pen register or trap and trace order requiring the telephone company to reveal the numbers dialed to and from a particular phone. It must simply certify that the information to be obtained is “”relevant to an ongoing criminal investigation.”” This is a very low level of proof, far less than probable cause. The judge must grant the order upon receiving the certification. The new bill would extend this low threshold of proof to Internet communications that are far more revealing than numbers dialed on a phone. For example, it would apparently apply to law enforcement efforts to determine what websites a person had visited. This is like giving law enforcement the power – based only on its own certification — to require the librarian to report on the books you had perused while visiting the public library. This is extending a low standard of proof – far less than probable cause — to “”content”” information.

3. In allowing for “”nationwide service”” of pen register and trap and trace orders, the bill would further marginalize the role of the judiciary. It would authorize what would be the equivalent of a blank warrant in the physical world: the court issues the order, and the law enforcement agent fills in the places to be searched. This is not consistent with the important Fourth Amendment privacy protection of requiring that warrants specify the place to be searched. Under this legislation, a judge would be unable to meaningfully monitor the extent to which her order was being used to access information about Internet communications. The Senate amendment to the Commerce, Justice and State Appropriations bill included a similar provision.

4. The bill would also grant the FBI broad access in “”intelligence”” investigations to records about a person maintained by a business. The FBI would need only certify to a court that it is conducting an intelligence investigation and that the records it seeks may be relevant. With this new power, the FBI could force a business to turn over a person’s educational, medical, financial, mental health and travel records based on a very low standard of proof and without meaningful judicial oversight.

The ACLU noted that the FBI already has broad authority to monitor telephone and Internet communications. Most of the changes proposed in the bill would apply not just to surveillance of terrorists, but instead to all surveillance in the United States.

Law enforcement authorities — even when they are required to obtain court orders – have great leeway under current law to investigate suspects in terrorist attacks. Current law already provides, for example, that wiretaps can be obtained for the crimes involved in terrorist attacks, including destruction of aircraft and aircraft piracy.

The FBI also already has authority to intercept these communications without showing probable cause of crime for “”intelligence”” purposes under the Foreign Intelligence Surveillance Act (FISA). Little is known about the extent of this wiretapping, other than that FISA wiretaps now exceed wiretapping for all domestic criminal investigations. The standards for obtaining a FISA wiretap are lower than the standards for obtaining a criminal wiretap.

Criminal Justice

One of the most serious civil liberties concerns in the Senate bill is that it would dramatically expand the use of secret searches. Normally, a person is notified when law enforcement conducts a search. In some cases regarding searches for electronic information, law enforcement authorities can get court permission to delay notification of a search. This bill would extend the authority of the government to request “secret searches” to every criminal case. This vast expansion of power goes far beyond anything necessary to conduct terrorism investigations.

The bill would also allow for the broad sharing of sensitive information in criminal cases with intelligence agencies, including the CIA, the NSA, the INS and the Secret Service. It would permit sensitive grand jury and wiretap information without judicial review or any safeguards regarding the future use or dissemination of such information.

The bill also creates a new crime of “”domestic terrorism.”” The new offense would transform protestors into terrorists if they engage in conduct that “”involves acts dangerous to human life.”” Members of Operation Rescue, the Environmental Liberation Front and Greenpeace, for example, have all engaged in activities that could subject them to prosecution as terrorists. Then, under this legislation, the dominos would fall. Those who provide lodging or other assistance to these “”domestic terrorists”” could have their homes wiretapped and could be prosecuted.