May 14, 2004
ACLU Letter to the House Judiciary Committee Expressing Opposition to H.R. 3179, the "Anti-Terrorism Intelligence Tools Improvement Act of 2003"
Howard Coble, Chairman
Robert C. Scott, Ranking Member
Subcommittee on Crime, Terrorism and Homeland Security
House Judiciary Committee
Re: ACLU's views on H.R. 3179, expanding USA PATRIOT Act surveillance powers (revised)
Dear Reps. Coble and Scott:
On behalf of the American Civil Liberties Union's nearly 400,000 members, we write to explain our opposition to H.R. 3179, the ""Anti-Terrorism Intelligence Tools Improvement Act of 2003.""
While we welcome Chairman Sensenbrenner's decision to delay consideration of this bill until legislative hearings can be held in the Crime, Terrorism and Homeland Security Subcommittee, we remain concerned that without substantial modifications, H.R. 3179 could have a serious impact on the civil liberties and privacy rights of ordinary people.
H.R. 3179 enhances the government's secret power to obtain personal records without judicial review, limits judicial discretion over the use of secret evidence in criminal cases, eliminates important foreign intelligence wiretapping safeguards, and allows the use of secret intelligence wiretaps in immigration cases without notice or an opportunity to suppress illegally-acquired evidence.
If passed without substantial modifications, the bill would be a major and unwarranted expansion of the government's secret surveillance powers under the USA PATRIOT Act and would have a detrimental impact on the ability of the federal courts to oversee government powers. H.R. 3179:
- Provides substantial criminal penalties for secret ""national security letters"" that allow the FBI to obtain personal records without any judicial oversight. Under current law, the FBI's has the power secretly to obtain, without any judicial review and without any individual suspicion, a long and growing list of highly personal records by issuing ""national security letters."" The records that can be obtained include the customer records of (1) ""financial institutions"" - which has now been broadened to include a myriad of businesses including travel agents, casinos, and pawnbroker shops, (2) ""communications service providers"" - which the government says includes libraries and bookstores with public Internet terminals, and (3) credit reports. As a result of section 505 of the USA PATRIOT Act, the FBI need not assert any suspicion that the records belong to a terrorist, spy or other foreign agent - merely that they are wanted for an investigation. Gag provisions prohibit the recipient of such a letter in all cases from informing anyone of the government's demands. H.R. 3179 would give the FBI the explicit authority to prosecute criminally any business or person that receives such a letter and violates the secrecy provision, and would give the FBI the power to obtain a court order to require production of such records or face penalties for contempt. For example, if a bookstore owner complained at a local Chamber of Commerce meeting about a broad FBI national security letter demand for the names of persons using Internet terminals with Arabic last names, or if a travel agency told a local reporter of a national security letter demand for information about all clients traveling to Canada as part of a crackdown on travel to Cuba, the bill would impose criminal penalties, including a prison sentence, for doing so.
- Limits judicial discretion over use of secret evidence in criminal cases. The Classified Information Procedures Act (CIPA) gives federal judges the option, in criminal cases, of permitting the government to substitute a summary of classified information rather than disclose that information in open court. The use of such a summary is an extraordinary exception to the Constitution's demand that the accused be allowed to confront the prosecution's evidence in a criminal case. H.R. 3179 would tie the judge's hands by requiring the judge to consider a judge's request for a summary of evidence in camera and ex parte, that is in secret and without the benefit of hearing from the other side. Consider the example of a case involving an exporter of video games, accused of violating regulations regarding the export of ""dual use"" technologies, in which the government wishes to use classified information. Under current law, the judge would have the discretion whether to hear a government request to use the classified information secretly based on the circumstances of the case. Under the bill, however, the judge would have no choice but to hear the government's request in secret.
- Allows secret foreign intelligence wiretaps of persons who have no connection to a foreign government or terrorist group. The Foreign Intelligence Surveillance Act (FISA) allows secret government surveillance (including physical searches or wiretaps) where criminal ""probable cause"" standards cannot be met but there is probable cause that a target is acting on behalf of a foreign power. By eliminating this foreign power requirement, this so-called ""lone wolf"" provision would violate the Fourth Amendment and allow secret wiretaps of non-U.S. persons outside criminal ""probable cause"" standards and without the government having to show they are connected to a foreign government or terrorist group. While some have argued the ""lone wolf"" provision is needed to respond to the government's failure to obtain a FISA warrant in the case of Zacarias Moussaoui, Congress's own joint 9-11 inquiry specifically rejected that conclusion, finding that government agents ""misunderstood the legal standard for obtaining an order under FISA."" The Joint Inquiry recommended greater training of FBI and other government lawyers to ensure proper understanding of existing legal authorities, not an amendment to FISA. The ""foreign power"" standard is integral to FISA's constitutionality and forms the basis for the rationale given by the Foreign Intelligence Surveillance Court of Review in its opinion upholding FISA surveillance against a constitutional challenge.
- Allowing the use of secret FISA-derived evidence in immigration (and possibly other) cases without notice or an opportunity to suppress illegally-acquired evidence. FISA contains important procedural safeguards for the use of secret intelligence surveillance information acquired by the FBI. These include the requirement that the government must give notice before using such information in court (50 U.S.C. §§ 1806(c), 1825(d), 1845(c)), that allows the person against whom evidence is to be used to file a motion to suppress on the basis that the evidence was acquired illegally (50 U.S.C. §§ 1806(e), 1825(f), 1845(e)), and that requires an in camera, ex parte review of the surveillance application and other materials by a federal judge where requested by the Attorney General to safeguard classified information (50 U.S.C. §§ 1806(f), 1825(g), 1845(f)). The bill would exempt civil immigration proceedings (and possibly other civil proceedings) from these important judicial safeguards. In so doing, the bill would allow secret use of secret information - which the government says may legally be withheld from the accused in immigration cases. This would be a step towards greater use of secret information in immigration cases, and a major setback for the efforts of members of Congress to reform the use of such information through legislation such as the Secret Evidence Repeal Act.
Six weeks after September 11, 2001, the Congress passed the complex and highly controversial USA PATRIOT Act without holding any public hearings at which organizations from across the political spectrum could explain their concerns about the Act. Many members of Congress, noting public anxiety about the erosion of basic civil liberties, have urged searching review and oversight of the law.
Instead of engaging in such oversight, the House Judiciary Committee is pressing forward with expanding the USA PATRIOT Act. While we welcome the decision to hold a legislative hearing on H.R. 3179, we still urge you to defer consideration of H.R. 3179 until the House judiciary and intelligence committees have undertaken comprehensive oversight of existing USA PATRIOT Act powers.
Laura W. Murphy
Director, ACLU Washington National Office
Timothy H. Edgar
cc: Members of the House Judiciary Committee
Members of the House Permanent Select Committee on Intelligence
 The new, much longer, list of ""financial"" institutions - which can be expanded at the discretion of the Treasury Secretary - was enacted without hearings or debate as section 374 of the Intelligence Authorization Act for FY2004, Pub. L. 108-177 (amending 12 U.S.C. § 3414).
 The Joint Inquiry found that the government could have obtained a warrant to search Moussaoui based on his connection with a Chechen rebel group, which was plainly a ""foreign power"" under FISA, and that the efforts of FBI investigators to connect the Chechen rebels to Al Qaeda was based on a mistaken belief that FISA required a connection to a ""recognized foreign power,"" which is not the case. The Joint Inquiry also faulted the FBI for failing to revisit the idea of seeking an ordinary criminal search warrant. Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, Report of the U.S. Senate Select Comm. on Intelligence and the U.S. House Permanent Select Comm. on Intelligence 321-323 (December 2002).
In a February 2003 report on FISA oversight, Senators Leahy, Grassley and Specter noted, with respect to this proposed change, that the Department of Justice was unable to provide even a single case, even in a classified setting, that explained why new wiretapping power was needed. As the report states, ""In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.""
 See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002). The ACLU, which argued that Fourth Amendment challenge to FISA as amended by section 218 of the Patriot Act, does not believe the case is correctly decided insofar as it upheld FISA surveillance even if the ""primary purpose"" of the surveillance was criminal investigation, but agrees that the ""foreign power"" standard is a crucial limitation on national security surveillance.