WASHINGTON — The American Civil Liberties Union today urged Congress to approach cautiously new legislation proposed by the Bush Administration after last week’s terrorist attacks, saying that many of its provisions go far beyond any powers conceivably necessary to fight terrorism in the United States.
“This legislation does not meet the basic test of maximizing our security with minimizing the impact on our civil liberties,” said Gregory T. Nojeim, Associate Director of the ACLU’s Washington National Office. “We are hopeful that Congress will carefully consider the proposal’s long-term impact on basic freedom in America.”
Among the bill’s most troubling provisions, the ACLU said, are measures that would deny meaningful hearings to immigrants, minimize judicial supervision of electronic surveillance by law enforcement authorities and vastly expand the government’s ability to conduct secret searches.
“This kind of far-reaching legislation requires the full deliberative and democratic process of the United States Congress,” said Anthony Romero, ACLU Executive Director. “In this time of national crisis, the people’s representatives must be even more thoughtful and deliberative than usual.”
Following are highlights of the civil liberties implications of the Administration’s proposals.
The immigration provisions of the Administration’s bill would confer new and unprecedented detention authority on the Attorney General based on vague and unspecified predictions of threats to the national security.
The provisions would permit the unilateral and indefinite administrative detention of any non-citizen based solely on the authority of the Attorney General. He would be given the unprecedented power to “certify” non-citizens based only on a vague “reason to believe” that the non-citizen “may” “endanger the national security.” The bill does not identify the evidence that is necessary for the certification to be issued.
The bill would also allow the Attorney General to unilaterally require the incarceration indefinitely of any non-citizen who is “certified” even if he or she is here legally, has not been charged with any immigration violation, is not accused of being removable as a “terrorist,” or is granted political asylum on the basis of persecution.
The bill would not allow for meaningful judicial review of the Attorney General’s detention decision because judges would have no yardstick by which to judge the appropriateness of the detention.
The bill would also retroactively make non-citizens deportable for providing material support for the lawful activities of a “terrorist organization.” This is true even if the organization was not a designated terrorist organization when the support was provided and the provision of such support was entirely lawful when given. Under this law, a permanent resident alien could be deported today for making a donation to the African National Congress because that group in the past engaged in military as well as nonviolent opposition to apartheid. And a permanent resident could be deported for having provided such aid in the 1980’s when thousands of Americans were doing the same thing and when it was plainly lawful to do so.
Wiretapping and Intelligence Surveillance
The wiretapping proposals in the Administration’s draft bill sound a common theme: they minimize the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification.
The FBI already has broad authority to monitor telephone and Internet communications. Most of the changes it proposes now would apply not just to surveillance of terrorists, but to all surveillance in the United States.
Security and civil liberties do not have to be at odds. Law enforcement authorities — even when they are required to obtain court orders – have great leeway under current law to investigate suspects in terrorist attacks. Current law already provides that wiretaps can be obtained for the crimes involved in terrorist attacks, including destruction of aircraft and aircraft piracy.
The FBI also has authority to intercept these communications without showing probable cause of crime for “intelligence” purposes under the Foreign Intelligence Surveillance Act. Little is known about the extent of this wiretapping, other than that FISA wiretaps now exceed wiretapping for all domestic criminal investigations. The standards for obtaining a FISA wiretap are lower than the standards for obtaining a criminal wiretap.
The bill would allow the government to use its intelligence gathering power to circumvent the probable cause standard that must be met for criminal wiretaps. Currently FISA surveillance, which does not contain many of the same checks and balances that govern wiretaps for criminal purposes, can be used only when foreign intelligence gathering is the primary purpose. The Administration’s bill would allow use of FISA surveillance authority even if the primary purpose is a criminal investigation.
The bill would effectively eliminate the protection that court orders afford for business records sought for intelligence purposes. Law enforcement officials would gain access to such information with a mere administrative subpoena. This is virtually no protection at all.
Under current law, a law enforcement agent can get a pen register or trap and trace order requiring the telephone company to reveal the numbers dialed to and from a particular phone. It must simply certify that the information to be obtained is “relevant to an ongoing criminal investigation.” This is a very low level of proof, far less than probable cause. The judge must grant the order upon receiving the certification. The Administration’s bill would extend this low threshold of proof to Internet communications that are far more revealing than numbers dialed on a phone. For example, it would apparently apply to law enforcement efforts to determine what websites a person had visited. This is like giving law enforcement the power – based only on its own certification — to require the librarian to report on the books you had perused while visiting the public library. This is extending a low standard of proof – far less than probable cause — to “content” information.
If enacted, the bill would likely expand use of the Carnivore Internet surveillance system under the weak standards for granting pen registers. This system gives law enforcement access to virtually all of the Internet communications passing through an ISP, not just those of the target of the court order, upon a law enforcement promise that it would seize only the communications of the target.
In allowing for “nationwide service” of pen register and trap and trace orders, the bill would further marginalize the role of the judiciary. It would authorize what would be the equivalent of a blank warrant in the physical world: the court issues the order, and the law enforcement agent fills in the places to be searched. This is not consistent with the important Fourth Amendment privacy protection of requiring that warrants specify the place to be searched. Under this legislation, a judge would be unable to meaningfully monitor the extent to which her order was being used to access information about Internet communications. The Senate amendment to the Commerce, Justice and State Appropriations bill includes a similar provision.
In a similar fashion, the bill would also extend controversial “roving” wiretap authority to intelligence wiretaps. Under a roving wiretap, a “no privacy zone” can follow a person into your home and give law enforcement the power to tap any phone a person may use.
The Administration’s bill would dramatically expand the use of secret searches. In most cases, a person is notified when law enforcement conducts a search. But in some cases, law enforcement authorities can get court permission to delay notification of a search for a limited class of crimes under special circumstances. This bill would extend the authority of the government to request “secret searches” in every criminal offense. This vast expansion of power goes far beyond anything necessary to conduct terrorism investigations.
The bill would also broadly expand the government’s forfeiture powers in criminal cases not related to terrorism. It would allow the government to take any property of an accused person – even if the person has not been convicted of any crime and the property was not obtained during the commission of a crime. Under this provision, the government could seize a person’s home, car or any other asset before proving that the person had committed any crime.
Currently, information obtained during grand jury proceedings must be kept secret except in very exceptional cases. The bill would broaden the ability of prosecutors to release this information widely to law enforcement, intelligence and military officials. The original rules against disclosure were put in place to protect unindicted persons or innocent victims from having embarassing personal information aired in public, and to protect the integrity of the investigation. This provision goes against long-standing rules in America against allowing the military or intelligence community to investigate domestic criminal cases.
The bill would further expand the already broad definition of terrorism to include very minor offenses, and would greatly increase the penalties for these acts. For example, under the new provisions, terrorism could include such things as a college student breaking the window of a federal building during a protest. Under the new bill, the student could be charged with a federal crime and be sentenced to life in prison.
“In sum,” said Laura W. Murphy, Director of the ACLU’s Washington National Office, “this legislation weakens essential checks and balances on the authority of federal law enforcement in a manner that is unwarranted.”