The ACLU has obtained a copy of the draft the of Vital Interdiction of Criminal Terrorist Organizations (""Victory"") Act of 2003 circulating on Capitol Hill. It would continue to expand the Department of Justice's (DOJ) powers under the Patriot Act by eroding checks and balances, holding people criminally liable for a terrorism related offense as a result of low-level drug crimes and allowing illegally gathered wiretap evidence to be used in court. This legislation will thwart the most important tools that Congress and the courts have created to ensure that law enforcement abides by the Fourth Amendment.
In January 2003, word leaked from the Department of Justice of a possible successor to the USA PATRIOT Act, the ""Domestic Security Enhancement Act,"" also known as ""Patriot Act II."" The advent of a Patriot II draft bill seemed to indicate Congress might soon be considering a major new expansion of federal power even before it has undertaken any substantial oversight of the executive branch's use of its USA PATRIOT Act powers. There are four Victory Act provisions that are also included in Patriot II. Thus, making the Victory Act another attempt, by the Administration and members of Congress, to expand federal powers under the guise of terrorism in a piecemeal manner. The following is an analysis of the civil liberties implications of the Victory Act.
Drug Offenders Could Be Charged As ""Terrorist""
Creates a federal crime that could link drug dealers to terrorism without proof of any connection to a Terrorist organization. This new federal crime of ""narco-terrorism"" would make manufacture, distribution, import, export or possession with intent to distribute any amount of any controlled substance ""knowing or intending"" that such activity ""directly or indirectly"" aids a terrorist organization (whether or not designated as such) or any person or group involved in terrorism. This crime of ""narco-terrorism"" is problematic because the government is not required to establish the defendant had knowledge of any connection to a terrorist organization before being convicted of this terrorism related offense. Section 101 makes it clear that a person charged with narco-terrorism does not have to know a group is a ""foreign terrorist organization"" to be culpable for this offense. Low-level drug offenders could be held criminally liable for a very serious federal crime by selling any amount of drugs for or to a loose knit drug organization, which unbeknownst to the drug dealer had terrorist connections. This new federal crime would carry a mandatory sentence of 20 years to life depending upon whether the defendant has prior felony drug convictions or if serious bodily injury or death results. In addition, this provision would allow the government to charge a person with ""narco-terrorism"" if they sold drugs to an individual who was involved in the planning or preparation of a terrorist act, even if the drug dealer did not have knowledge that the person was involved in planning a terrorist plot.
The Government Could Require People to Surrender Documents Without A Court Order in Terrorism Cases
The Attorney General will have authority to issue Administrative Subpoenas in Terrorism Cases. Section 303 would amend the administrative subpoena provision of Title 18 (Section 3486(a)(1)(A)) to authorize the Attorney General to issue administrative subpoenas, without prior judicial approval, in terrorism cases. Currently under this section of Title 18, the Attorney General is permitted to issue administrative subpoenas during the investigation of child abuse, child sexual exploitation and health care fraud cases. Administrative subpoenas under this provision would require a person to produce ""any records or other things relevant to the investigation."" 18 U.S.C Sec. 3486 (a)(1)(B)(i). Section 303 is disturbing because it could allow the Attorney General to require people to surrender records without any oversight by the courts.
This concept of evading judicial review is pervasive throughout both Patriot I and Patriot II related legislation. Judicial review of decisions made by the executive and legislative branches of government is the basic principle of the separation of powers doctrine. The principle of separation of powers provides the three branches of government with a method of ""checks and balances"" to ensure each branch of government asserts its delineated powers as established in the Constitution. Rep. F. James Sensenbrenner (R-WI) recognizes the inconsistency in the Administration's positions on intelligence warrants and administrative subpoenas when he states ""You can't in on breath defend (the) Patriot Act, saying (intelligence) warrants are reviewed by a judge, then in the second breath say we'll have administrative subpoenas"" that aren't reviewed by a judge.[1]
The Government Could Issue Administrative Subpoenas, Rather Than a Warrant Approved by a Judicial Officer, to Apprehend Person Who Have Been Charged or Convicted of Felonies.
Gives the Attorney General the authority to issue Administrative Subpoenas to Apprehend Fugitives. Again, the use administrative subpoena process is particularly disturbing in context of criminal investigations because it gives the Attorney General power to require people DOJ determines are witnesses to produce a wide array of records and answer questions without any judicial approval and in some instances without the subject of the investigation having notice of the subpoena. This provision gives the Attorney General power to issue an administrative subpoena for a defendant who has been charged with or convicted of a felony under federal or state law and flees, evades or attempts to flee or evade custody or the jurisdiction of the court. In routine criminal cases, a warrant is issued by a judicial officer for persons considered fugitives from the law. Under this provision, the Attorney General can also issue administrative subpoenas to witnesses and require witnesses to produce any records (i.e. ""including books, papers, documents, electronic data, and other tangible and intangible items that constitute or contain evidence."" Sec. 304) that is relevant to the apprehension of the fugitive. Recipients of these administrative subpoenas do have a right to contest the subpoena in court within 20 days of service or before the return date of the subpoena. If a subpoena is issued to Internet service providers the Attorney General can delay notice of the subpoena to the customer of the Internet service provider.
Allows Law Enforcement Agencies To Use Evidence In Court Seized Illegally.
Creates an exception for the use of illegal evidence from wiretaps. This section of the Victory Act would amend 18 U.S.C. 2515 to include an exception that would allow evidence gathered from a wiretap, that would otherwise be excluded from a trial, hearing or grand jury proceeding, to be used against a defendant. The only means of excluding illegal evidence gathered from a wiretap under this provision would be to establish to the court that the law enforcement officers acted in ""bad faith"" in collecting the evidence.
This statutory ""bad faith"" standard is a higher standard to meet than even the standard establish by courts under the Fourth Amendment ""good faith"" exception. Some courts have found that the ""good faith"" exception to the Fourth Amendment exclusionary rule applies to electronic surveillance evidence. See U.S. v. Moore, 41 F.3d 370 (8th Cir. 1994) and U.S. v. Tham, 948 F.2d 1107(9th Cir. 1991). Evidence that is gathered as a result of a wiretap, and the warrant for the wiretap is later found to be defective, under the ""good faith"" exception this evidence could be admitted, unless it was based on information the officer ""knew was false or whose veracity he recklessly disregarded."" Franks v. Delaware, 438 U.S. 154, (1978) and United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985). Also, the ""good faith"" exception would not apply to a warrant application that had deliberate or reckless omissions. United States v. Stanert, 762 F.2d 775, 781 amended 769 F.2d 1410 (9th Cir. 1985). Sec. 302 statutory ""bad faith"" exception goes even further. It would allow the government to use evidence that would be excluded under the Fourth Amendment ""good faith"" exception, unless it is established that law enforcement acted in ""bad faith."" If this type of evidence is admitted in court it would encourage sloppy investigative work by law enforcement officers because warrants could be based on false and misleading information as long as the officer did not act in ""bad faith"" by relying on this information. It will be extremely difficult to prove an officer's ""bad faith"" in court.
The Government Could Charge Individuals with a New Offense of ""Reverse"" Money Laundering Just For Carrying Money Over State Lines.
Creates a new criminal offense called ""Reverse"" Money Laundering. This section would create a new crime for anyone to transport over state lines more than $10,000 in currency concealed in a vehicle with knowledge that the money came from some type of unlawful activity or knowing that it was intended to be used to promote unlawful activity. Under current law, money laundering occurs when money that is derived from an unlawful activity in the past is used to commit another crime. This new ""reverse"" money laundering offense occurs when money is being transported with the intention that it will be used to promote future unlawful activity. In addition, Section 207 of the Victory Act makes it an offense to conduct a domestic financial transaction for the purposes of ""reverse"" money laundering.
The troubling aspect of this provision is that it is not clear how or if the government will be required to establish a defendant's knowledge of the intended use of the money before a person can be charged with this offense. While a defendant's willful blindness (i.e. turning a blind eye to what the money will be used for) will likely not help him avoid responsibility, how will the government be able to establish prior to a crime being committed that the defendant had knowledge of how the money would be used? In addition, this new offense of ""reverse"" money laundering does not require that the money at issue is the result of any crime. Thus, because it is not clear how the government will establish if a person has knowledge of how the money will be used prior to their arrest, this section has civil liberties implications because innocent citizens could be charged with this offense for simply carrying large amounts of cash across state lines. This concept was rejected during negotiations over the Civil Asset Forfeiture Reform Act (CAFRA) and the Patriot Act. Even more disconcerting is the government's ability under Section 204 of the Victory Act to enter a restraining order for the money, prior to trial and before the defendant can have a hearing. See summary of Section 204 below.
The Government will be allowed to Take An Individuals Property Prior to Trial Without a Court Hearing.
Permits the Restraint of Property Subject to Criminal Forfeiture Prior to Trial. Section 204 would allow property that could be used to satisfy a money judgment, but not necessary linked to criminal activity to be restrained prior to trial. In order for the government to get a restraining order charges must filed against the person, but the defendant does not get a hearing regarding the restraining order unless he requests it. During the hearing on the restraining order the defendant has the burden of establishing by a preponderance of the evidence that these are the only assets he has to obtain a lawyer and that there is prima facie evidence that there is no probable cause to support forfeiture of the property.
This section has civil liberties implications regarding whether the defendant receives due process, in terms of his property being restrained prior to a hearing that the defendant must request. In addition, this inhibits a defendant's ability to exercise his Sixth Amendment right to counsel. In order to obtain a hearing regarding pre-trial restraint of his property a defendant must request the hearing. It would be difficult for a defendant to request a hearing without a lawyer who would know that the defendant was entitled to request a hearing in the first place. In addition, it will be hard for a defendant to even retain a lawyer to request a hearing if his assets are not available to him prior to trial.
Conclusion
While every provision of the Victory Act does not have civil liberties implications, the provisions that are problematic could result in serious repercussions on the rights of citizens and non-citizens in this country. In light of the expansion of powers that have resulted from the Patriot Act, if the Victory Act is enacted it will continue to erode rights guaranteed citizens in this country under the Bill of Rights.
[1] Milwaukee Journal Sentinel, Sensenbrenner Not Eager to Expand Subpoena Powers, September 16, 2003.