Hon. Arlen Specter                                        
Chairman                                                         
Senate Judiciary Committee                             
Dirksen 224                                                    
Washington, DC  20505                                  

Hon. Patrick Leahy
Ranking Member
Senate Judiciary Committee
Dirksen 152
Washington, DC  20505

Dear Chairman Specter and Senator Leahy:

On behalf of the American Civil Liberties Union and its more than 550,000 members, we are writing to call to your attention a little-noticed provision in the Conference Report on H.R. 3199, the USA PATRIOT Act Improvement and Reauthorization Act, that could pose a significant danger to free speech. 

These changes are buried in title VI of the Conference Report, the “Secret Service Authorization and Technical Modification Act of 2005,” which 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.  Anti-abortion groups plan peaceful protests, including a candlelight vigil.  Under current law, the Secret Service can arrest anyone if they enter a protected zone at the venue for the Presidential speech, while other security issues would be covered by local trespass statutes.  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.  They certainly should not be included without debate in a Conference Report on the reauthorization of the USA PATRIOT Act.

Thank you for your consideration of our views. 

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Timothy H. Edgar
National Security Policy Counsel