AMERICAN CIVIL LIBERTIES UNION
WASHINGTON NATIONAL OFFICE
STATEMENT ON
Good afternoon Chairman Sensenbrenner, Mr. Conyers and members of the Judiciary Committee. My name is Rachel King and I am a legislative counsel for the American Civil Liberties Union. The ACLU appreciates the opportunity to make a statement before you today on the Administration's bill, the proposed "Anti-Terrorism Act of 2001". The ACLU is a nation-wide, non-partisan organization with nearly 300,000 members devoted to protecting the principles of freedom set forth in the Bill of Rights.
I have been asked by Judiciary Committee staff to comment on the criminal justice provisions in Title III. However, the ACLU has identified significant civil liberties problems in the wiretapping, intelligence and immigration provisions of the bill. Highlights of these concerns are reflected in a press release that I have attached to this document.
We wish to express our heartfelt sympathy to the victims of the terrorist attack. We join the rest of the country in the sincere hope that the perpetrators are brought to justice.
In the aftermath of the terrorist attacks, it is appropriate that Congress take every reasonable step it can to protect our nation against future attacks. But it is a mistake to assume that many of the expanded police powers sought in the bill are going to make us safer. Some of the provisions of Title III of the Administration's bill seem to be reasonable measures to give law enforcement tools to investigate terrorism more effectively. We do not object to these provisions. However, it is our strong belief that other provisions go far beyond addressing the events of September 11th.
Although we appreciate the opportunity to be part of this briefing, it should not be used in place of thorough public hearings. We urge Congress to engage in a thorough and deliberative analysis of the Administration's legislation and really look behind it to see if it will make our nation safer. The civil liberties that we value so much as a society are at stake and we urge you to go slowly.
Today we will discuss amendments to Title III. While we do not object to many of the provisions we want to lodge our objection to those provisions that are completely unrelated to investigating terrorism.
Part I - Recommended Changes
Section 352 - Notice -- "Sneak and Peak" Searches
Section 352 would give the government the authority to seek judicial approval to conduct secret searches - where they could search a person's property without giving notice for 90 days - or longer with judicial approval. This means that the government could enter your house, apartment or office with a search warrant when you are away, conduct a search, seize or copy things such as your computer hard drive and not tell you until months later.
The Administration is not seeking this power for limited purpose of investigating serious crimes of terrorism, but is asking to expand it to every single search warrant for any criminal case.
The Fourth Amendment protection against unreasonable searches and seizures requires the Government to both obtain a warrant and give notice to the person whose property will be searched before conducting the search. The notice requirement enables the person whose property is to be searched to assert his or her Fourth Amendment rights. Without notice, a person has no ability to protect himself or herself against a warrant that is inaccurate or overbroad. The Supreme Court recently affirmed that notice is a key element of Fourth Amendment protections in the cases of Richards v. Wisconsin (1997) and Wilson v. Arkansas (1995).
The Government already has the authority, in limited situations, to delay notification for searches of some forms of electronic communication if the judge has reason to believe based upon a showing by the government that informing the person about the search would (1) endanger the life or physical safety of an individual, (2) cause the suspect to flee prosecution, (3) risk destruction or tampering with evidence, (4) cause intimidation of potential witnesses or (5) otherwise seriously jeopardize an investigation or unduly delay a trial.
Our opposition to this provision stems from our concern that the Government will use this delayed notice power not only in extraordinary situations like a high level terrorism investigation, but for run-of-the-mill criminal cases. Because search warrant hearings are conducted ex parte with only the government presenting its side, most prosecutors or police officers will be able to make a convincing argument to a judge that notifying the suspect will jeopardize the investigation. Over time, delayed notice will become the exception that swallows the rule, dealing yet another crushing blow to the Fourth Amendment. We recommend that the Committee strike this provision.
Section 303
This section would make the crime of attempted terrorism or conspiracy to commit terrorism punishable to the same degree as the underlying offense of terrorism. This provision is poorly drafted because the meaning is unclear. The section reads, "Any person who attempts or conspires to commit any Federal terrorism offense shall be subject to the same penalties as those prescribed for the offense. . . " (emphasis added). One could also interpret this provision as a "back-door" attempt to expand the death penalty. Because of its redundancy and vagueness, we recommend that the committee strike this section.
This provision could mean that a person convicted of attempt or conspiracy would be eligible to receive, but would not necessarily receive, the same penalty as the convicted terrorist. Under current law, a person convicted of attempting or conspiring to commit an act of federal terrorism may be punished "for any term of years up to the maximum punishment that would have applied had the offense been completed." See 18 U.S.C. 2332(b)(c)(1)(G). By that interpretation, section 303 is redundant and should be stricken.
Another reading of this provision would require anyone convicted of attempt or conspiracy be punished as if he had completed the offense. This expansion could create some very unjust results.
Conspiracy law casts a very broad net entangling people who often have a tangential connection to the crime. This happens in drug prosecutions. In one such prosecution, Kemba Smith, the girlfriend of a drug dealer who had only minor connection to her boyfriend's crime but was sentenced as a conspirator to a mandatory 24-year sentence.
We recommend striking this section. Current law is preferable because it provides judges with the authority to punish conspiracy and attempt as seriously as terrorism, but does not require that result.
Restore Mens Rea to Sec. 305
Section 305 expands the prosecution of possession of biological weapons and establishes the authority to promulgate rules to regulate the use of biological agents. Overall, we do not oppose the intent of section 305, however, it should be drafted more carefully. Because of the way it is worded the provision creates a strict liability offense so that innocent or unwitting individuals could be prosecuted under this section because it creates a strict liability offense.
The provision forbids the knowing possession of certain biological agents or toxins, but does not create an absolute bar to possession. It allows persons to have amounts that are "of a type or quantity that is not reasonably justified for prophylactic, protective or other peaceful purposes." Knowledge of whether the type or quantify of the agent can reasonably be used for peaceful purposes is not an element of the crime. Thus, a person may be prosecuted even if he believed that he had an amount reasonable for peaceful purposes and can face up to 10 years in prison for this unknowing mistake. We recommend deleting the last line: "Knowledge of whether the type of any biological agent, toxin, or delivery system is reasonably justified by a peaceful purpose is not an element of this offense."
Section 354. Limit the Breadth of Release of Grand Jury Information
This section would allow secret information obtained during the grand jury to be released to the military, intelligence and immigration agencies. Under current law, information obtained during a grand jury is secret and only disclosed in limited circumstances to attorneys and law enforcement officers working on the case. Currently, Federal Rule of Criminal Procedure 6 (e)(3)(A) permits disclosure to government personnel "deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce the criminal law." Information may not be disclosed for any other purpose or to any other person. The secrecy provisions serve two functions - to protect the integrity of the criminal investigation and to protect the privacy and reputation of a person under investigation. Many persons investigated by the grand jury are not indicted. Keeping the proceedings secret safeguards reputations from damaging and unfounded accusations.
Section 354 would expand the grand jury secrecy exception in two ways (1) by expanding the list of people who can have access to this private information and (2) by expanding what the information can be used for. Under this provision, grand jury information could be disclosed to any law enforcement agency, the military, the intelligence branches and the immigration service.
In the context of the terrorist attacks, one can understand the need for information to be shared among these other branches of the government. The Government is responding to the September 11th attacks by using its criminal, military and intelligence powers, and a variety of federal agencies are intimately involved in solving the case and plotting the appropriate response.
However, in other instances it will not be appropriate to release grand jury information to the military, intelligence or immigration services. Once the government has indicted someone, then the information will, for the most part, become part of the criminal case and thus a matter of public record. However, if the person under investigation is never indicted then sharing that information with other agencies is inappropriate. Our country has long prohibited the military from investigating civilian criminal cases and prohibited many intelligence agencies from engaging in domestic surveillance. Sharing information from criminal cases to intelligence, military and immigration authorities blurs the functions of the various organizations, risks violating the principle of keeping the military out of civilian law enforcement and risks violating the privacy of persons under investigation.
If Congress decides it must pass section 354, it should limit its application to extraordinary cases involving national security, which should be very narrowly defined.
Part II -- General Concerns
There are other provisions of the bill that we believe warrant hearings and full debate and should be carefully reviewed for their due process and privacy implications. We believe these provisions raise serious civil liberties and due process concerns notwithstanding the events of September 11th.
Examples of these changes are:
Congress may be interested in allowing expanded government power because of the seriousness of the September 11th attack. However, in reality, the above-listed provisions are not necessary to prosecute serious cases of terrorism because the law already covers those cases. Where these provisions will be applied is in the less serious cases that are prosecuted under the terrorism statute.
The definition of terrorism under current law is already broad enough to include certain acts of civil disobedience. This bill would expand the already broad definition. For example, people involved in the demonstrations at the World Bank or protesting the bombing missions near Vieques Island, may fall within the definition of section 2332(b). Applying these changes to the law to these crimes puts the provisions in a different light.
Take the following hypothetical: the Government has charged a college student under the federal terrorism statute for damaging a federal building during the course of a demonstration by breaking a window, for example. Applied in this scenario, the provisions listed above would have very troubling consequences - permitting the Government to eliminate the statute of limitations; release secret grand jury evidence to the military, intelligence or immigration authorities; use RICO to investigate anyone who has ever attended a meeting with the defendant; or sentence the person to life in prison or obtain a sample of the person's DNA to place in CODIS.
It is a daunting challenge to carefully craft language that targets at the most serious conduct without being overbroad. It is the kind of legislative drafting that requires careful consideration. A mere two weeks have passed, too short a time to draft, consider and pass such sweeping enhancements of police power. We strongly counsel caution and calm deliberation so as to protect both our national security and our civil liberties.
That said, Congress is under great pressure to adopt this legislation lest it be perceived as not doing all that it can to help the war against terrorism. While we believe that Congress should not act in haste, if it nonetheless pushes forward now with legislation then we recommend the changes mentioned in part I: eliminate sections 303, 352, and 354 (or severely limit it) and restore the mens rea element to 354. and an amendment that would modify the bill so that the provisions would only apply to the most serious acts of terrorism.
Modifying Amendment
Congress may decide that some of the provisions that the attorney general is asking for may be appropriate in the context of an exceptional case of terrorism, but appropriate for every possible case that would be covered under this bill. We suggest adding an amendment that would modify the proposed bill so that the Title III provisions would only apply to the most serious offenses. For example, such language might read:
"The Amendments affected by this Act shall not apply to an offense in which the defendant did not -
(a) intend to cause death or
This change would limit the scope of the provisions so that they would only be used to prosecute the most serious crimes.
I'd like to close with a thought. I was talking to someone on the phone the other day about the fear in our country in the aftermath of the attack. He said, "I do not fear what will happen to us as much as I fear what we will become." You are in the unenviable position of being asked to consider extremely serious legislation very quickly in response to an extremely serious situation. While it is very natural to want to react emotionally and quickly, we ask that Congress consider this legislation in a serious and deliberative manner subjecting it to a public hearing process and full public discussion and debate. The American public deserves no less. Thank you very much.