9/11 Commission Report Takes on Patriot Act, Government Secrecy; ACLU Outlines Civil Liberties Problems With Cabinet-Level Spymaster

July 22, 2004 12:00 am

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WASHINGTON – The official 9/11 Commission report, released today, takes aim at the USA Patriot Act and the excessive amount of official secrecy in the Bush administration.

“Regarding civil liberties, the 9/11 Commission report essentially says that the Justice Department and White House have not made a compelling case for either the administration’s obsession with secrecy or its Patriot Act,” said Anthony D. Romero, ACLU Executive Director. “This bipartisan report should serve as a wake-up call for Congress that it must maintain the sunsets in the Patriot Act.”

As the report states on page 394, “The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.”

The long-awaited report, which contains the official findings of the independent commission investigating the 9/11 terrorism attacks, contains significant recommendations germane to the debate over civil liberties that has raged for more than two-and-a-half years now.

The report echoes criticisms by the ACLU and others that the Justice Department has so far failed to demonstrate why the expanded surveillance and investigative powers in the Patriot Act are needed to fight terrorism. The commission’s findings, the ACLU said, strongly confirm the need to maintain the Patriot Act sunsets.

The sunset provisions – which apply to some of the Patriot Act’s most controversial provisions – would require Congress to reconsider about a tenth of the law in December 2005. Provisions that sunset include the infamous “library records” provision, which reduces judicial review when counter-intelligence agents seek secret court orders for the production of a wide array of personal information, including library, business, genetic, medical and even gun purchase records.

Notably, the commission does not recommend that any sunseted provisions should be made permanent.

In addition, the commission’s report contains a list of 10 separate missed “operational” opportunities to foil the attacks. While the report stops short of calling the attacks preventable, it clearly shows that the intelligence and law enforcement communities were not using their existing counter-terrorism powers to their fullest potential.

“The administration has yet to explain why it didn’t use its already expansive power to the fullest before 9/11,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “The commission’s report suggests that the White House claim that the worst parts of the Patriot Act are needed to stop terrorism is dubious, to say the least.”

The report also cites both excessive government secrecy and overclassification as threats to open government and, more notably, as threats to national security. The ACLU pointed to the finding as evidence that the government should stop stonewalling the series of Freedom of Information Act requests submitted by the ACLU and other civil liberties groups on the Patriot Act, the Abu Ghraib scandal and other matters of public interest.

Characterizing the current Congressional intelligence watchdog system as “dysfunctional,” the commission’s strongest recommendation is the need for more aggressive Congressional oversight of the intelligence community, including making the intelligence budget public. The ACLU applauded the move but emphasized that the structure of the committee would be less important than whether its operation was in turn open to public scrutiny.

As the report stated: “Secrecy stifles oversight, accountability and information sharing. Unfortunately, all the current organizational incentives encourage over-classification. This balance should change; and as a start, open information should be provided about the overall size of agency intelligence budgets.”

Contrary to earlier reports, the commission explicitly rejects – in part, for civil liberties reasons – the creation of a domestic intelligence agency modeled after Britain’s MI-5. The ACLU, a critic of any domestic intelligence activity that is not linked to law enforcement, applauded the move.

Unfortunately, there are some recommendations that raise civil liberties concerns; two of the most salient are calls for the backdoor creation of national ID cards in the form of a standardized drivers licenses and a cabinet-level intelligence czar.

“A Senate-confirmed intelligence director sitting in the White House would be in the hip pocket of the president,” Romero added.

The ACLU questioned whether pitting the FBI’s culture of case-oriented law enforcement against the CIA’s culture of covert, subversive operations, under one chief, would result in a further weakening of civil liberties protections in the FBI’s intelligence work. Similarly, if the new director were to have operational control over both domestic and foreign intelligence work – that is, real authority over both the FBI and the CIA – he or she could blur the lines between the agencies’ two very different missions.

Finally, the ACLU expressed concern that if the director of national intelligence ends up controlling the purse strings of the entire intelligence community, there are very few contingencies that could keep the director from exercising specific, operational control over both domestic and foreign intelligence.

The 9-11 Commission’s report can be found at:

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