ACLU Interested Persons Memo on the Conference Report Agreement on H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005

· Permits the records of ordinary Americans to be secretly obtained without adequate safeguards (sections 106, 115). While the conferees rejected a call for new FBI “administrative subpoenas” without any prior court review. The conference report continues to allow records that are not connected to an international terrorist or spy to be obtained using either a secret court order under section 215 of the Patriot Act or a “national security letter” (NSL) that can be issued by an FBI official without any court oversight. For section 215 orders (but not for NSLs), the court would have to find that “reasonable grounds” existed to support the government’s contention that the orders were relevant to an investigation to protect against terrorism and records that were in fact connected to an international terrorist or spy would be presumed relevant – i.e., while it would be easier to obtain records that are connected to a suspected foreign terrorist or spy (because such records enjoy a presumption of relevance), it would be no harder to get records that do not contain any such connection and concern wholly innocent people. Limited judicial review would be available if a recipient objects. Secret section 215 orders, but not NSLs, would include “minimization” procedures to limit the government’s retention of information about people with no connected to a suspected spy or terrorist. While welcome, such minimization procedures are no substitute for a meaningful standard for the issuance of such orders that would require some connection between the records sought and a suspected terrorist, spy or other foreign agent, or for meaningful judicial review to determine whether that standard was met.

• Continue to gag recipients of records demands without any prior court finding, with new criminal penalties (sections 106, 116, 117). Both secret section 215 orders and NSLs would continue to contain a gag provision that bars a recipient from telling anyone (other than the recipient’s lawyer) that records have been obtained. For NSLs, if the gag provision is challenged, the government must certify that harm will result from disclosure. The certification lasts for one year, but can be renewed indefinitely. For both NSLs and section 215 orders, the right to challenge the gag in court is made almost meaningless because a court must accept as “conclusive” the government’s assertion that disclosure of an NSL would harm national security or interference with diplomatic relations. Extending these deeply flawed provisions regarding the right to challenge a gag order, which in the original conference report applied only to NSLs, to secret section 215 orders is not a step forward, it is a step backward. Criminal penalties are added to violating the NSL’s gag provision, although such penalties only apply where there is intent to obstruct an investigation.
  
• Allows sneak-and-peek searches under a broad standard; new time limits would still allow such searches to continue to remain secret for weeks, months or even years (section 114). The legislation would preserve the overbroad standard for sneak-and-peek searches that permits notice of the search of a home to be delayed whenever immediate notice might “seriously jeopardize” an ongoing investigation. Delays would no longer be allowed for any “reasonable time” but would be presumptively limited to an initial 30-day period, with an unlimited number of 90-day extensions if approved by the court. These modest limits could be waived by the court, which has broad discretion to set a longer initial period or a longer renewal period. The Justice Department has acknowledged that fully 88% of sneak-and-peek searches are unrelated to terrorism investigations.
  
• Allows secret eavesdropping and secret search orders that do not name a target or a location with enhanced court oversight (section 108). While the legislation requires some additional court oversight of the government’s use of this broad power, it would still permit the government to obtain what amounts to a blank or general warrant – an order that allows the government to eavesdrop on a telephone conversation or secretly search a home or business and, in effect, fill in the names and locations later. No requirement that the government ascertain that a suspect is using the telephone it is monitoring is included.
  
• Omits modest limits on a host of additional Patriot Act surveillance powers. Many Patriot Act surveillance powers are made permanent with no change, or even with expanded scope. For example, FISA surveillance of non-U.S. persons can continue for as long as a year with no additional court review. Likewise, confidential information gathered in criminal investigations can continue to be shared with the CIA or foreign intelligence agencies without adequate privacy safeguards, or even notice to the court overseeing the criminal investigation.
  
• Creates additional death penalties. Although the final reauthorization package does not include the most extreme death penalty provisions sought by some, it would create a number of new crimes, including new death penalties, without adequate consideration by Congress.
  
• Allows Justice Department, not federal courts, to determine that a state has a competent death penalty system. If a state establishes an effective system for providing competent counsel to indigent defendants in death penalty proceedings, it will qualify for a relaxed set of procedural rules for federal habeas proceedings that stack the deck in favor of the state. Section 507 takes the decision of whether there is an adequate system out of the hands of the federal courts, and gives it to the U.S. Attorney General.
  
• Expands the jurisdiction of the Secret Service to impose “exclusion zones” – which cannot be entered on pain of federal imprisonment – to non-Presidential events. The conference report includes new language at section 602, which did not appear in either the House or Senate version of the bill, that substantially broadens the ability of the Secret Service to impose “no-go” zones at major events. Currently, entering such a zone is only a federal crime if the President, or another protectee, “is or will be” attending the event. Under the conference report, however, such zones could be imposed at any “event of national significance,” a term that is not defined by the bill.
  
• Force more organizations to check people against flawed government lists, through increased Treasury Department penalties. Section 402 of the conference report dramatically increases the penalties for violations of the International Emergency Economic Powers Act (IEEPA). The Treasury Department has invoked existing IEEPA penalties in urging non-profit organizations to check employees and others against flawed government lists of blocked persons issued under the authority of that law. While the Treasury Department’s advice is ostensibly voluntary, the increased penalties for violations – including civil violations which can occur without any intent to break the law – will increase pressure on non-profits to follow the Treasury Department’s guidelines urging such checking of lists.

As described above, the amendments to these powers contained in H.R. 3199 and S. 2271 are generally cosmetic and in some cases take a step backward. One change, however, has been made to the definition of terrorism for which Congress deserves credit. Section 119 of H.R. 3199 reforms the Patriot Act’s definition of “domestic terrorism” to provide that assets may not be forfeited except where the organization or individual is involved in a serious federal crime. While the current, overbroad definition of domestic terrorism remains in place – which covers any unlawful activity that is dangerous to human life and could cover the civil disobedience activities of some protest organizations – the civil forfeiture statute is amended to provide that a narrower list of federal crimes will be used for forfeiture purposes.

Our detailed analysis follows.

Secret orders for records of libraries, bookstores, businesses, doctors’ offices, financial institutions, communications providers. The conference report on H.R. 3199, as amended by S. 2271, would continue to permit the records of ordinary Americans to be secretly obtained under sections 215 and 505 of the Patriot Act with only minimal additional safeguards.

The conferees wisely rejected a call for new FBI “administrative subpoenas” without any prior court review. Such a far-reaching proposal would have essentially eliminated even those inadequate safeguards that exist in the Patriot Act, such as the requirement that the secret Foreign Intelligence Surveillance Court (FISA court) provide prior approval for records obtained under section 215. Nevertheless, under the final package, records that are not connected to an international terrorist or spy could still be obtained using either a secret FISA court order under section 215 of the Patriot Act or a “national security letter” (NSL) under section 505 of the Patriot Act. NSLs can be issued by an FBI official without any court approval.

Section 106 of the conference report amends section 215 of the Patriot Act. Under the amended section 215 records power, the FISA court would have to find that “reasonable grounds” existed to support the government’s contention that the records or things sought by the orders were relevant to an investigation to protect against terrorism. Records that are connected to a suspected foreign terrorist or spy would be presumed relevant. In other words, it would be easier to obtain records that are connected to a suspected foreign terrorist or spy, but it would not be harder to get records that concern wholly innocent people. In theory, limited judicial review would be available if a recipient objects, but only to determine whether the orders were unlawful.

Disturbingly, the statute provides that any information obtained by the government that is privileged – for example, attorney-client communications – would not lose its privileged character, strongly implying that the existence of the legal privilege would not be a valid basis for challenging the order. In addition, while the proposed changes would provide that the FBI need not be notified of the identity of an attorney consulted by a recipient of an NSL, and this change is welcome, it only follows from the position of the Justice Department under current law that disclosures to attorneys are not covered by the secrecy provisions of the NSL statutes.

The right to challenge is clearly inadequate. National security investigations are wide ranging and seek information about lawful activities, including political, religious or other First Amendment activities. The government must simply maintain the inquiry is necessary to protect against international terrorism or espionage and is not based “solely” on First Amendment activities for an investigation of a U.S. person. Review in the FISA court would be much more restricted than in ordinary proceedings, because such review would be conducted in secret, with classified information that the recipient would generally be barred from examining. The recipient’s right to challenge would also be limited by the expense of litigating before a special court in Washington, DC. Furthermore, under proposed rules issued by the FISA court in October, a recipient’s right to choose a lawyer (and the expense of litigation) would be further limited because only lawyers with security clearances could appear before the court.

Secret section 215 records orders would include “minimization” procedures to limit the government’s retention of information that has no relation to foreign intelligence – a very broad category of information that is defined to include anything relevant to the activities of a foreign government or foreign person. This is a very poor substitute for appropriately limiting these orders to those connected to a suspected terrorist or spy. Such procedures would be drafted in secret by the government and the FISA court would have limited ability, as a practical matter, to enforce such limits. The FISA court has expressed frustration with the government’s failure to honor minimization procedures in the past.[2]

The conference report provides (at section 115) a right to challenge NSL demands in a federal court, but does nothing to provide a meaningful standard for the issuance of an NSL. It fails to require a statement of facts or any individualized suspicion connecting the records sought to a suspected foreign terrorist. The provisions on NSLs also do not include the minimization requirements that are included in the bill for section 215 orders for records, instead mandating a study of the issue. A study is not adequate to address this problem. According to reports, NSLs are now issued at a rate of 30,000 per year, a 100-fold increase that dwarfs the total number of all FISA court orders,[2] but the conference report fails to provide any meaningful substantive limit on NSLs or provide any additional prior review. The conference report would also make explicit the government’s power to seek a court order to require compliance with an NSL without giving the court discretion to decline to enforce or examine the underlying bases for the demand. Failure to comply could result in a finding of contempt, which could result in fines or even jail time.

Finally, the conference report also continues to allow the FBI to gag recipients of records demands without any prior court finding, even creating a new crime to penalize any violation of the gag order (at section 117). Both secret FISA orders and NSLs would continue to contain a gag provision that prevents a recipient from telling anyone that records have been obtained (sections 106, 116). For section 215 orders, the gag provision is indefinite, and can only be challenged after one year. For NSLs, if the gag order is challenged, a certification of harm that would support the gag order would last for one year, but could be extended indefinitely.

As a result of the additional amendments in S. 2271, for both NSLs and section 215 orders there is an express right to challenge the gag provisions in court, but the court must accept as “conclusive” the government’s assertion that disclosure of an NSL or section 215 order may harm national security or interfere in a criminal investigation (section 106). This assertion will no doubt be routine, thus rendering review virtually meaningless. Extending this unconstitutional standard of review to section 215 orders is not a step forward, it is a step backward. These provisions also infringe on the separation of powers, by purporting to instruct federal courts that they must accept as conclusive a certification provided by the Executive Branch regarding fundamental First Amendment rights. Any person who unsuccessfully challenged the gag would have to wait a full year for any further challenge, and then the government could simply make the same conclusive certification again. Criminal penalties are added for violations of the NSL’s gag provision, although such penalties only apply where there is intent to obstruct an investigation.

These provisions in S. 2271 do not cure the constitutional problems of such a sweeping prior restraint on speech. Adding criminal penalties for unauthorized disclosure threatens to create unintended consequences, even with the required intent, because it would encourage more criminal leak investigations that will result in prosecutors forcing journalists to disclose their confidential sources on threat of jail.

The protections for libraries in S. 2271 are also clearly inadequate. Library and bookstore records could still be obtained using secret section 215 orders under a vague standard that does not require any connection with a terrorist or spy – although the conference report does require high level approval for these and some other sensitive records, including medical records containing personally identifiable information and gun purchase records.

The final package excludes libraries from NSLs if the libraries function in their “traditional roles” including providing basic access to the Internet, but it also makes libraries subject to NSLs if they provide communications services. That term is defined broadly enough that the government may be tempted to argue that libraries that do nothing more than provide basic Internet access are covered – despite Congress’s clear intent to exclude them if they do not function as Internet Service Providers (ISPs). Basic Internet access gives patrons who sign up for free e-mail the ability to send and receive electronic messages, which the government may argue fits the definition of communications services.

If the government makes this argument, the courts should resolve any ambiguity in the statutory language by examining Senator Sununu’s explanation that the provision was designed to ensure that “a library engaged in the traditional role of lending books, providing books to patrons in digital format, or providing access to the Internet, is not subject to a national security letter.” Cong. Rec. S 1521 (Feb. 28, 2006); see also colloquy with Senator Durbin, Feb. 26, 2006.

Secret searches of homes and businesses. Section 114 of the conference report would continue to allow sneak-and-peek searches under a broad standard that threatens the constitutional principle of “knock-and-announce” that is incorporated in long-standing Fourth Amendment precedent. While Patriot Act reformers had urged that such searches should only be allowed if the government could show that specific harms would result absent such a search, the conference report would preserve the overbroad standard for sneak-and-peek searches allowing notice of the search of a home to be delayed whenever immediate notice might “seriously jeopardize” an ongoing investigation. The problem with such a standard is that courts will be reluctant to second-guess the government’s contention about the effect of notice on its own investigation.

The conference report includes new time limits on delayed notice that are better than current law, but would still allow such searches to continue to remain secret for months or even years. And, as the Justice Department has reported, fully 88 percent of such searches occur in cases having nothing to do with terrorism.

Delays would no longer be allowed for any “reasonable time” but would be presumptively limited to an initial 30-day period, with an unlimited number of 90-day extensions if approved by the court. However, these limits could be waived by the court, which has broad discretion to set a longer initial period or a longer renewal period, both of unspecified duration, if the “facts of the case” justify a longer period.

Roving “John Doe” wiretap orders. Section 108 of the conference report would allow the FISA court to continue to issue secret eavesdropping and secret search orders that do not name a target or a location. These roving “John Doe” wiretaps could never be approved by an ordinary federal court, because the statute governing criminal electronic surveillance does not permit a surveillance order to be issued that fails to name either the target or the phone. Where “roving” surveillance is allowed that follows a target from phone to phone, criminal surveillance also requires the government to ascertain that the target is using the phone. FISA does not.

Section 108 does include enhanced court oversight of this broad power. The government would be required to report back to the court, ordinarily within 10 days (although this period could be extended for up to 60 days for good cause) about why the government believed the target of the surveillance would be at the location where conversations were intercepted. Unlike criminal wiretaps, law enforcement officials would not have to ascertain that the surveillance target was in the proximity of the telephone, computer or other device the communications of which would be intercepted. The conference report would still permit the government to obtain what amounts to a blank or general warrant – an order that allows the government to eavesdrop on a telephone conversation or secretly search a home or business and, in effect, fill in the names and locations later.

Definition of “domestic terrorism.” Section 119 of the conference report reforms the Patriot Act’s definition of “domestic terrorism” to provide that assets may not be forfeited except where the organization or individual is involved in a serious federal crime. This is a welcome, although limited, reform.

The bill would leave the current, overbroad definition of domestic terrorism in place. That definition, laid out at 18 U.S.C. § 2331, covers any unlawful activity that is dangerous to human life. Such a broad definition, which applies even to minor state crimes such as trespass or vandalism, could cover the civil disobedience activities of some protest organizations.

The Patriot Act provides a number of significant consequences for any group or individual who is engaged in either international or domestic terrorism as defined by 18 U.S.C. § 2331, including becoming the subject of broad surveillance and other law enforcement powers. Among the most far-reaching is civil forfeiture of the assets of an organization connected to domestic terrorism. Civil forfeiture is a process where the government may seize assets or personal property (such as a person’s home, boat, or car). Forfeiture can take place even without any criminal conviction and forfeiture proceedings do not include all of the protections of a criminal trial.

Section 119 of the conference report would amend the civil forfeiture statute to provide that civil forfeiture would be triggered, not by the very broad definition of “domestic terrorism,” but rather by a showing that an individual is implicated in one of a narrower (although still very extensive) list of “Federal crimes of terrorism” at 18 U.S.C. § 2332b(g)(5).

Other surveillance authorities. The conference report omits a number of proposed modest limits on additional Patriot Act surveillance powers. Many Patriot Act surveillance powers are made permanent with no change, or even with expanded scope.

For example, section 105 of the conference report would allow FISA surveillance of non-U.S. persons to continue for as long as a year with no additional court review, going significantly beyond the expanded surveillance approved by section 207 of the Patriot Act. Likewise, confidential information gathered in criminal investigations can continue to be shared with the CIA or foreign intelligence agencies without adequate privacy safeguards, or even notice to the court overseeing the criminal investigation.

Notice of information sharing is already required under section 203(a) of the Patriot Act for grand jury information. Extending notice to information shared under sections 203(b) and (d) would allow the court to ensure that a criminal investigation is not being improperly conducted as a pretext for an intelligence probe on behalf of the CIA or other intelligence agency without an adequate criminal foundation. This sensible, modest limit on surveillance was contained in the House-passed bill (H.R. 3199) and in the version of the Senate bill introduced by Senators Specter and Feinstein (S. 1389), but the conference report omits this safeguard.

Death penalty provisions. The conference report omits the most extreme death penalty changes that had been sought by some, but still creates a number of new crimes, including new death penalties, without adequate consideration. The death penalty system in the United States is deeply troubled, with over 100 people on death row having been found innocent.

Reauthorization of the Patriot Act is certainly not an appropriate vehicle for adding new death penalties to an already troubled death penalty system. Congress should not have considered such changes through the Patriot Act, where they were not given adequate attention.

Habeas corpus provisions. Section 507 of the conference report would attempt to take the authority to decide when a state has a competent system of legal representation in death penalty cases out of the hands of the courts.

Presently, if a state establishes an effective system for providing competent counsel to indigent defendants in death penalty proceedings it will qualify for a relaxed set of procedural rules for federal habeas proceedings that impair the rights of defendants. After enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts have been responsible for determining whether states are providing competent counsel in death row habeas cases. No state has qualified under the so-called “opt-in” (relaxed) provision of AEDPA. Federal courts make the determination as to whether a state has satisfied the requirements to opt-in.

Under section 507, federal courts would no longer decide whether a state has established a competent counsel system for indigent persons in capital punishment proceedings. Instead, that decision would be made by the United States Attorney General. Giving the Attorney General, the chief prosecuting officer of the United States, the authority to decide whether state indigent defense counsel systems pass muster is not appropriate.

Secret Service provisions. Title VI of the Conference Report, the “Secret Service Authorization and Technical Modification Act of 2005,” was not a part of either the House or the Senate version of the bill. Despite its title, the new language does not merely make technical corrections, but rather makes major changes to the criminal statutes administered by the Secret Service that could seriously damage the free speech rights of all Americans.

18 U.S.C. § 1752 currently provides criminal penalties for entrance into “any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting . . . .” Section 602 of the Conference Report would broaden this provision, giving the Secret Service effective power to create “exclusion zones” even without the expected attendance of the President or other Secret Service protectee.

Even under current law, the Secret Service has participated in harassment of individuals who have appeared at taxpayer-funded forums with the President if they are perceived to disagree with the administration’s position. For example, on March 21, 2005, two Denver students were expelled from a “town hall” forum with President Bush because they had an anti-war bumper sticker on their car. The students had obtained tickets from their Congressman. Officials, including an official who identified himself as a Secret Service agent, told the students that the event was limited to audience members who shared the President’s views and they would have to leave, even if they had no intentions of disrupting the event. Apparently it made no difference that the topic of the forum was Social Security reform, not the war in Iraq. Similar incidents have occurred at Presidential visits throughout the country.

Expanding 18 U.S.C. § 1752 could seriously worsen the impact on free speech of these heavy-handed tactics. The amendment would allow the Secret Service to cordon off areas and enforce exclusion zones at any event deemed a “special event of national significance,” even if no Secret Service protectee were scheduled to speak or attend. Such an expansion could have a dire impact on free speech.

Consider these hypothetical examples:

• The Secret Service declares a four-day international population conference sponsored by the UN an “event of national significance.” The President speaks one evening. A number of organizations plan peaceful protests. Under current law, the Secret Service can arrest anyone if they enter a protected zone at the venue for the Presidential speech. If the bill passes, the Secret Service could shut down areas throughout the conference and arrest any protester who violates the zone.
  
• The Secret Service declares a four-day summit on the war in Iraq in Chicago to be an “event of national significance.” While the Secretary of Defense is scheduled to speak, he will only be present for one event. Protesters plan to engage in nonviolent and non-disruptive, silent “street theater.” Under current law, the Secret Service could arrest the protesters if they enter a protected zone during the event at which the official is speaking, but otherwise the event would be governed by local trespass statutes. If the bill passes, the Secret Service could impose exclusion zones during the entire conference.

Any changes to the Secret Service’s authority should not be enacted without hearings on the impact to free speech of its abuse of its existing authority.

“Terrorism financing” provisions will force more checking against flawed government lists. Section 402 would severely increase the civil fines and criminal penalties for violating rules issued by the Treasury Department’s Office of Foreign Assets Control (OFAC) prohibiting certain financial transactions. It would put additional pressure on charities and other non-profit organizations to check their employees, grantees and persons with whom they do business against flawed government lists of blocked persons. It should be dropped from the Conference Report.

This provision is misleadingly titled “Increased Penalties for Terrorism Financing.” In reality, the provision would apply to all violations of Treasury Department regulations implemented under the International Emergency Economic Powers Act (IEEPA), which gives the President very broad powers to prohibit transactions with foreign countries, companies and individuals.

IEEPA is the primary authority for the President’s power to impose economic sanctions and its application goes far beyond terrorism. OFAC enforces a list of “Specially Designated Nationals and Blocked Persons” that includes not only suspected terrorists, but also suspected drug dealers and many individuals and companies from countries targeted for economic sanctions.

The blocked nationals list now contains thousands of names and runs to 221 pages of very small print.[3] Names are added to the list based on criteria that are unclear and evidence that is often secret. No system that adequately protects due process rights has been established for a person’s name to be removed from the list if he or she has been incorrectly listed.

The Treasury Department has issued ostensibly voluntary guidelines to charities and the non-profit sector that have the effect of coercing employers to check the names of their employees and vendors against this list and refuse to hire or deal with anyone whose name appears on the list. The thousands of names listed include very common names and this kind of list checking can result in many “false positives” that can be difficult to resolve.

Section 402 would quintuple the maximum fine for civil violations (which require no intent at all) from $10,000 to $50,000. That is, if an employer hires a person on the list, and did not intend to hire a listed individual, and did not intend to finance terrorist activity the employer would face a $50,000 fine. Section 402 would also double the maximum criminal penalty, which applies to knowing violations, from 10 years to 20 years.

Because financing terrorism or providing material support to a terrorist organization already carries a sentences of 20 years or up to life in prison, see 18 U.S.C. §§ 2339C, doubling the maximum sentence for knowing violations of IEEPA is not necessary to provide a 20 year sentence for charities that knowingly engage in terrorism financing. Rather, the main effect of this provision is to drastically increase the penalties for knowing violations of non-terrorism-related IEEPA rules.

Increasing penalties for all IEEPA violations puts added pressure on nonprofits, no matter how small, to check employees against these lists or fall afoul of economic sanctions policies. No law requires that they shoulder this burden and subject the people who they want to hire or with whom they want to conduct business to this invasive system. But, such a massive increase in penalties could have the same effect.

Sunsets and oversight. The bill provides a four year sunset on only three specific provisions, despite substantial bipartisan support for a broader sunset. Sixteen of the Patriot Act’s provisions expanding secret surveillance will expire at the end of 2005 if not renewed by Congress. If the conference report is enacted, this “sunset clause” will be repealed and fourteen of these provisions become permanent. The other two provisions are extended for four years, until December 31, 2009. These include the provisions relating to secret FISA court orders (section 215 of the Patriot Act) and roving wiretaps (section 206) of the Patriot Act

The conference report would also repeal one sunset in the Intelligence Reform and Terrorism Prevention Act of 2004, and extend another. That law’s changes to the crime of providing material support to a terrorist organization will be made permanent. Section 6001 of the Intelligence Reform Act, which allowed the FISA court to issue wiretaps and secret search orders for non-citizens who are not connected to any foreign terrorist organization would be extended to December 31, 2009, along with the two Patriot Act provisions.

Conclusion. The ACLU opposes the final package on the Patriot Act. Despite yeoman’s work on behalf of civil liberties by many members on both sides of the aisle, the conference report remains flawed. It does contain some improvements, but other changes either are not meaningful or represent a step backwards. While making virtually all of the expiring provisions of the USA PATRIOT Act permanent, it fails to include necessary changes to restore checks and balances. The improvements are simply not sufficient to make renewal of the Patriot Act consistent with the Bill of Rights.