Interested Persons Memo: Section-by-Section Analysis of Justice Department draft ""Domestic Security Enhancement Act of 2003,"" also known as ""PATRIOT Act II""

February 14, 2003

To:            Interested Persons
From:        Timothy H. Edgar, Legislative Counsel
Date:         February 14, 2003
Re:            Section-by-Section Analysis of Justice Department draft ""Domestic Security Enhancement Act of 2003,"" also known as ""Patriot Act II""

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The Department of Justice (DOJ) has been drafting comprehensive anti-terrorism legislation for the past several months.  The draft legislation, dated January 9, 2003, grants sweeping powers to the government, eliminating or weakening many of the checks and balances that remained on government surveillance, wiretapping, detention and criminal prosecution even after passage of the USA PATRIOT Act, Pub. L. No. 107-56, in 2001.

Among its most severe problems, the bill

Diminishes personal privacy by removing checks on government power, specifically by

  • Making it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the authority of the shadowy, top-secret Foreign Intelligence Surveillance Court.  (Sections 101, 102 and 107)  
  • Permitting the government, under certain circumstances, to bypass the Foreign Intelligence Surveillance Court altogether and conduct warrantless wiretaps and searches.  (Sections 103 and 104)  
  • Sheltering federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials.  (Section 106)  
  • Creating a new category of ""domestic security surveillance"" that permits electronic eavesdropping of entirely domestic activity under looser standards than are provided for ordinary criminal surveillance under Title III.  (Section 122)  
  • Using an overbroad definition of terrorism that could cover some protest tactics such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico as a new predicate for criminal wiretapping and other electronic surveillance.  (Sections 120 and 121)  
  • Providing for general surveillance orders covering multiple functions of high tech devices, and by further expanding pen register and trap and trace authority for intelligence surveillance of United States citizens and lawful permanent residents.  (Sections 107 and 124)  
  • Creating a new, separate crime of using encryption technology that could add five years to any sentence for crimes committed with a computer. (Section 404)  
  • Expanding nationwide search warrants so they do not have to meet even the broad definition of terrorism in the USA PATRIOT Act. (Section 125)  
  • Giving the government secret access to credit reports without consent and without judicial process.  (Section 126)  
  • Enhancing the government's ability to obtain sensitive information without prior judicial approval by creating administrative subpoenas and providing new penalties for failure to comply with written demands for records.  (Sections 128 and 129)  
  • Allowing for the sampling and cataloguing of innocent Americans' genetic information without court order and without consent.  (Sections 301-306)  
  • Permitting, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement. (Section 311)  
  • Terminating court-approved limits on police spying, which were initially put in place to prevent McCarthy-style law enforcement persecution based on political or religious affiliation.  (Section 312)  
  • Permitting searches, wiretaps and surveillance of United States citizens on behalf of foreign governments - including dictatorships and human rights abusers - in the absence of Senate-approved treaties.  (Sections 321-22)

Diminishes public accountability by increasing government secrecy; specifically, by

  • Authorizing secret arrests in immigration and other cases, such as material witness warrants, where the detained person is not criminally charged.  (Section 201)  
  • Threatening public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals.  (Section 202)  
  • Harming fair trial rights for American citizens and other defendants by limiting defense attorneys from challenging the use of secret evidence in criminal cases.  (Section 204)  
  • Gagging grand jury witnesses in terrorism cases to bar them from discussing their testimony with the media or the general public, thus preventing them from defending themselves against rumor-mongering and denying the public information it has a right to receive under the First Amendment.  (Section 206)

Diminishes corporate accountability under the pretext of fighting terrorism; specifically, by

  • Granting immunity to businesses that provide information to the government in terrorism investigations, even if their actions are taken with disregard for their customers' privacy or other rights and show reckless disregard for the truth.   Such immunity could provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft's ""Operation TIPS.""   (Section 313)

Undermines fundamental constitutional rights of Americans under overbroad definitions of ""terrorism"" and ""terrorist organization"" or under a terrorism pretext; specifically by

  • Stripping even native-born Americans of all of the rights of United States citizenship if they provide support to unpopular organizations labeled as terrorist by our government, even if they support only the lawful activities of such organizations, allowing them to be indefinitely imprisoned in their own country as undocumented aliens.  (Section 501)  
  • Creating 15 new death penalties, including a new death penalty for ""terrorism"" under a definition which could cover acts of protest such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results.  (Section 411)  
  • Further criminalizing association - without any intent to commit specific terrorism crimes - by broadening the crime of providing material support to terrorism, even if support is not given to any organization listed as a terrorist organization by the government.  (Section 402)  
  • Permitting arrests and extraditions of Americans to any foreign country - including those whose governments do not respect the rule of law or human rights - in the absence of a Senate-approved treaty and without allowing an American judge to consider the extraditing country's legal system or human rights record.  (Section 322)

Unfairly targets immigrants under the pretext of fighting terrorism; specifically by

  • Undercutting trust between police departments and immigrant communities by opening sensitive visa files to local police for the enforcement of complex immigration laws.  (Section 311)  
  • Targeting undocumented workers with extended jail terms for common immigration offenses.  (Section 502)  
  • Providing for summary deportations without evidence of crime, criminal intent or terrorism, even of lawful permanent residents, whom the Attorney General says are a threat to national security.  (Section 503)  
  • Completely abolishing fair hearings for lawful permanent residents convicted of even minor criminal offenses through a retroactive ""expedited removal"" procedure, and preventing any court from questioning the government's unlawful actions by explicitly exempting these cases from habeas corpus review.  Congress has not exempted any person from habeas corpus -- a protection guaranteed by the Constitution -- since the Civil War.  (Section 504)  
  • Allowing the Attorney General to deport an immigrant to any country in the world, even if there is no effective government in such a country.  (Section 506)

Given the bipartisan controversy that has arisen in the past from DOJ's attempts to weaken basic checks and balances that protect personal privacy and liberty, the DOJ's reluctance to share the draft legislation is perhaps understandable.  The DOJ's highly one-sided section-by-section analysis reveals the Administration's strategy is to minimize far-reaching changes in basic powers, as it did in seeking passage of the USA PATRIOT Act, by characterizing them as minor tinkering with statutory language designed to bring government surveillance authorities, detention and deportation powers, and criminal penalties ""up to date.""

This ACLU section-by-section analysis of the text of the legislation, however, reveals that the DOJ's modest descriptions of the powers it is seeking, and the actual scope of the authorities it seeks, are miles apart.  The USA PATRIOT Act undercut many of the traditional checks and balances on government power.  The new draft legislation threatens to fundamentally alter the constitutional protections that allow us as Americans to be both safe and free.  If adopted, the bill would diminish personal privacy by removing important checks on government surveillance authority, reduce the accountability of government to the public by increasing government secrecy, further undermine fundamental constitutional rights of Americans under an already overbroad definition of ""terrorism,"" and seriously erode the right of all persons to due process of law.

Our detailed section-by-section analysis follows.

Title I - Diminishing Personal Privacy by Removing Checks on Government Intelligence and Criminal Surveillance Powers

Title I amends critical statutes that govern intelligence surveillance and criminal surveillance.  Both forms of surveillance are subject to Fourth Amendment limitations.  See Katz v. United States, 389 U.S. 347 (1967) (criminal surveillance); United States v. United States District Court (""Keith""), 407 U.S. 297 (1972) (intelligence surveillance).  Yet while traditional searches are governed by warrant procedures largely drawn from the common law, wiretapping and other forms of electronic surveillance are governed by standards and procedures embodied in two federal statutes that respond to Katz and Keith - Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 28 U.S.C. §§ 2510-22, which governs surveillance of criminal suspects, and the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-63 which governs surveillance of foreign powers and agents of a foreign power for intelligence purposes.

Making it easier for the government to initiate surveillance and wiretapping, including of United States citizens and lawful permanent residents, through the secret Foreign Intelligence Surveillance Court  (Sections 101-111).  The draft bill's proposed amendments to FISA attack key statutory concepts that are critical to providing appropriate limits and meaningful judicial supervision over wiretapping and other intrusive electronic surveillance for intelligence purposes.  These limits were approved by Congress in 1978 because of a history of abuse by government agents who placed wiretaps and other listening devices on political activists, journalists, rival political parties and candidates, and other innocent targets.  These so-called ""national security wiretaps"" and other covert surveillance were undertaken without any court supervision and without even the slightest suspicion that the targets of such surveillance were involved in criminal activities or were acting on behalf of any foreign government or political organization.  This pattern of abuse culminated in the crimes of Watergate, which led to substantial reforms and limits on spying for intelligence purposes.

FISA represented a compromise between civil libertarians, who wanted to ban ""national security wiretaps"" altogether, and apologists for Presidential authority, who claimed such unchecked intelligence surveillance authority was inherent in the President's Article II power over foreign relations.  The Congress chose to authorize intelligence wiretaps without evidence of crime, subject to a number of key restraints.  One of these restraints, separating intelligence gathering from criminal investigations, has been significantly weakened by the USA PATRIOT Act.  The USA PATRIOT Act abolished the ""primary purpose"" test - the requirement that FISA surveillance could only be used if the primary purpose of surveillance was gathering of foreign intelligence, and not criminal prosecution or some other purpose.

The draft bill eliminates or substantially weakens a number of the remaining constraints on intelligence surveillance approved by Congress.  Taken as a whole, these changes go a long way to undermine limits on intelligence surveillance essential to preserving civil liberties and to preventing a repeat of the wiretapping abuses of the J. Edgar Hoover and Watergate eras.

Authorizing the government to initiate wiretaps and other electronic surveillance on Americans who have no ties to foreign governments or powers (sec. 101).  This section would permit the government to obtain a wiretap, search warrant or electronic surveillance orders targeting American citizens and lawful permanent residents even if they have no ties to a foreign government or other foreign power.  Under FISA, the government need not show, in many circumstances, probable cause that the target of a wiretap is involved in any criminal activity.  FISA requires an alternate showing - probable cause that the target is acting on behalf of a foreign government or organization, i.e., a ""foreign power.""  Section 101 of the draft bill eliminates this requirement for individuals, including United States citizens, suspected of engaging in ""international terrorism.""  It does so by redefining individuals, including United States citizens or lawful residents, as ""foreign powers"" even if they are not acting on behalf of any foreign government or organization.  The ""foreign power"" requirement was a key reason FISA was upheld in a recent constitutional challenge. See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (while FISA requires no showing of probable cause of crime, it is constitutional in part because it provides ""another safeguard . . . that is, the requirement that there be probable cause to believe the target is acting 'for or on behalf of a foreign power.'"")[1]

Permitting surveillance of the lawful activities of United States citizens and lawful permanent residents if they are suspected of gathering information for a foreign power (sec. 102).  United States citizens and lawful permanent residents who are not violating any law should not be subject to wiretapping or other intrusive electronic surveillance.  The FISA contains dual standards for non-U.S. persons and for U.S. persons with respect to surveillance of ""intelligence gathering activities,"" i.e., the gathering of information for a foreign government or organization.   These standards reflect the judgment of Congress that U.S. persons should not face electronic surveillance unless their activities ""involve or may involve"" some violation of law (as, for example, would certainly be the case with respect to any activity in furtherance of terrorism or other crime).  For non-U.S. persons, this showing does not have to be made,  i.e., the gathering of information by foreign persons for foreign powers is enough to trigger FISA.  The draft bill (at section 102) applies the lower standard to U.S. persons. 

Lawful gathering of information for a foreign organization does not necessarily pose any threat to national security.  This amendment would permit electronic surveillance of a local activist who was preparing a report on human rights for London-based Amnesty International, a ""foreign political organization,"" even if the activist was not engaged in any violation of law.  By eliminating this need to show some violation of law may be involved before authorizing surveillance of U.S. persons, Congress could well succeed in rendering FISA unconstitutional, by eliminating another key reason FISA was upheld in a recent court challenge.  See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (holding that FISA surveillance of U.S. persons meets Fourth Amendment standards in part because a surveillance order may not be granted unless there is probable cause to believe the target is involved in activity that may involve a violation of law).

Permitting the government, under some circumstances, to bypass the Foreign Intelligence Surveillance Court altogether  (Sections 103, 104).  Section 103 gives the Attorney General the power to authorize intelligence wiretaps and other electronic surveillance without permission from any court, including the Foreign Intelligence Surveillance Court, for fifteen days, after an attack on the United States or force authorization resolution from the Congress.  Under existing federal statutes, a formal declaration of war by the Congress triggers a host of civil liberties consequences, including authorization by the Attorney General to engage in intrusive electronic surveillance for up to fifteen days without any court order at all.  The draft bill expands this power dramatically by eliminating judicial review for any surveillance under FISA for a period up to fifteen days pursuant to (1) an authorization of force resolution by the Congress or (2) a ""national emergency"" created by an attack on the United States.  For surveillance under the latter circumstance, no action by Congress would be required.  Once the President has unilaterally decided such an attack has occurred, the Attorney General could unilaterally decide what constitutes an ""attack"" on the United States, creating an emergency that justifies what would otherwise be plainly illegal wiretaps.

DOJ's rationale for this change is that declarations of war are rare and the statute should be updated to reflect this.  This argument fundamentally misconstrues the purpose of this provision. The normal FISA process, including review by the Foreign Intelligence Surveillance Court, was Congress's attempt to impose meaningful limits over national security surveillance conducted without a formal declaration of war and for continuing threats that cannot easily by defined by reference to traditional war powers.  To use Congress' grant of surveillance authority following a declaration of war as an argument to permit surveillance even in the absence of such action by Congress is a fundamental intrusion on Congress's war powers. 

The draft bill (at section 104) also expands special surveillance authority, available for up to a year with no court order at all, for property ""under the open and exclusive control of a foreign power"" by permitting eavesdropping on ""spoken communications.""   This expansion of authority leaves intact the current requirement that such surveillance can go forward only if the Attorney General certifies under oath that ""there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.""  Still, the new authority would plainly involve eavesdropping on communications protected by the Fourth Amendment, as it would inevitably result in listening - without any court order - to the conversations in the United States of anyone who might be using telephones, computers, or other devices owned by a foreign government, political organization, or company owned by a foreign government.

There are serious questions about whether the secret review of surveillance orders by the Foreign Intelligence Surveillance Court, which by its nature can only hear the government's side of the case, is effective in protecting Americans' civil liberties.  These amendments would bypass judicial review under FISA altogether.

Sheltering federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials  (Section 106).  This section would encourage unlawful intelligence wiretaps and secret searches by immunizing agents from criminal sanctions if they conduct such surveillance, even if a reasonable official would know it is illegal, by claiming they were acting in ""good faith"" based on the orders of the President or the Attorney General.  In order to ensure that FISA was successful in bringing national security surveillance under the rule of law, Congress not only provided a process for legal intelligence surveillance, but also imposed criminal penalties on any government agent who engages in electronic surveillance outside that process.  Congress also provided a ""safe harbor"" for agents who engaged in surveillance that was approved by the Foreign Intelligence Surveillance Court, even if such surveillance was not in fact authorized by FISA.  The draft bill (at section 106) substantially undercuts the deterrent effect of criminal sanctions for illegal wiretaps or electronic surveillance by expanding the ""safe harbor"" to include surveillance not approved by any court, but simply on the authorization of the Attorney General or the President.  

Of course, the very spying abuses FISA was designed to prevent were undertaken with the authorization of high-ranking government officials, including the President.  For example, President Nixon authorized just such a covert search of the Brookings Institution, whom he and his staff suspected of possessing classified information that had been leaked to the press.  As described by Nixon biographer Richard Reeves:

Nixon sat up.  ""Now if you remember Huston's plan [to engage in covert surveillance] . . .""

            ""Yeah, why?""  Haldeman said.

            Kissinger said: ""But couldn't we go over?  Now, Brookings has no right to classified-"" 

            The President cut him off, saying, ""I want it implemented. . . . Goddamit get in there and get those files.  Blow the safe and get them.""[2]

Any government official acting within the scope of his employment already enjoys ""qualified immunity"" from charges of violating Fourth Amendment or other constitutional rights - i.e., an official cannot be punished or held civilly liable if a reasonable government official would not have known his or her conduct was illegal.  See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Providing additional protection to government officials who engage  in wiretaps or searches without a court order, where a reasonable official would know those wiretaps or searches were clearly illegal, would take away any incentive for such officials to question an illegal authorization by the President, Attorney General or other high official.

Further expanding pen register and trap and trace authority for intelligence surveillance of United States citizens and lawful permanent residents beyond terrorism investigations (Section 107).  This section allows the government to use intelligence pen registers and trap and trace surveillance devices to obtain detailed information on American citizens and lawful permanent residents, including telephone numbers dialed, Internet addresses to which e-mail is sent or received, and the web addresses a person enters into a web browser, even in an investigation that is entirely unrelated to terrorism or counterintelligence.  In so doing, it erodes a limitation on this authority that was part of the USA PATRIOT Act.

The standard for obtaining a pen register or trap and trace order is very low, requiring merely that a government official certify that the information it would reveal is ""relevant"" to an investigation.  Under section 216 the USA PATRIOT Act, the government was given new power to obtain this sensitive information for Internet communications merely by making this certification.  This expansion was a serious erosion of meaningful judicial oversight of government surveillance because it expanded the authority to get court orders for pen registers and trap and trace devices in a way that permitted the government to access far more detailed content than was available before such authority was extended to the Internet.  

For United States citizens and lawful permanent residents, Congress limited the new authority to terrorism and counterintelligence investigations.  This section would remove that limitation, opening the door to expanded government surveillance of United States citizens and lawful permanent residents under controversial government law enforcement technologies like CARNIVORE and the Total Information Awareness Pentagon ""super-snoop"" program whose development Congress just voted to limit.

Providing cleared, appointed counsel for the Foreign Intelligence Surveillance Court of Review  (Section 108).  While we welcome the provision providing for an appointed, cleared counsel to argue in favor of a ruling of the Foreign Intelligence Surveillance Court when the government appeals its decisions, it should not substitute for participation, in appropriate cases, by interested civil liberties organizations.  The Foreign Intelligence Surveillance Court approves government orders for electronic surveillance and physical searches under FISA.  It meets in secret and never hears from anyone other than the government officials seeking its approval.  If an order is denied, the government has the right to seek review of that denial in a special three-judge court of appeals, called the Foreign Intelligence Surveillance Court of Review.  No one can appeal the approval of a surveillance order, as the target of the surveillance is not notified.  Instead, the only challenge to an approved order would occur later, if the information obtained is to be used in a criminal prosecution, in a suppression motion before the district court.  If the information is used only for intelligence purposes, there is never an opportunity t

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