Despite Improvements, ACLU Says Senate Intelligence Reform Bill Fails to Fully Protect Civil Liberties and Privacy

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Contact: Media@dcaclu.org

WASHINGTON – The American Civil Liberties Union today expressed its disappointment with the Senate’s approval of major legislation to overhaul the nation’s intelligence systems. While welcoming steps that improved protections for privacy and civil liberties, the ACLU noted that the final bill failed to address all concerns.

“The Senate had the chance to get it right the first time – it came close, but when dealing with our privacy and freedom, close isn’t good enough,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “The House is likely to consider a version that goes far beyond what the Commission called for. We hope that in conference, Republican lawmakers will stick to their principles and reject ‘Big Brother’ provisions.”

The Senate adopted the Collins-Lieberman “National Intelligence Reform Act of 2004” (S. 2845) on a vote of 96 to 2. The legislation to restructure the nation’s intelligence systems was expedited by Congress, despite repeated calls from many intelligence leaders and others — including Senator Ted Stevens (R-AK) and Robert Byrd (D-WV), the longest serving senators of their respective parties — for a more careful and deliberative process.

“Slow and steady could have won the race, but in the Senate’s rush to enact changes, privacy and liberty lost,” said Charlie Mitchell, an ACLU Legislative Counsel. “The final Senate bill, while better than the House version, has left key privacy and civil rights concerns unaddressed. Senators Collins and Lieberman should be commended for their work to balance freedom and security, but the end result still falls short on freedom.”

The ACLU said that senators failed to address concerns about the creation of an “Information Sharing Network,” a system that the ACLU said lacks privacy and civil liberties safeguards. As it stands, the network may evolve to become the successor to the defunct Total Information Awareness Program. There are no standards for which individuals are placed on — or can be removed from – watchlists, the ACLU said; the provision also would allow information of dubious value to float around in the network forever, available to any law enforcement officer.

The Collins-Lieberman bill also contains a provision that requires states to issue drivers licenses to conform to a national standard, a measure that the ACLU said would lead to the back-door creation of a national ID card. Under such a system, the ACLU said, racial, religious or ethnic profiling and other forms of illegal discrimination could increase.

Before the vote, the Senate considered several amendments. In a significant victory for civil liberties, Senator Jon Kyl (R-AZ) withdrew his amendment that would have gutted the civil liberties board. His amendment to further expand law enforcement powers granted under the Patriot Act was ruled not germane to the debate.

In another victory for privacy and freedom, the Senate accepted an amendment offered by Senator Patrick Leahy (D-VT) that corrects several problems with no-fly and automatic selectee lists. His amendment requires the Department of Homeland Security to specify how people get on these lists and how they can get off. The amendment also requires the civil liberties board to conduct an independent evaluation of the privacy and civil liberties implications of the use of these lists.

The final bill also maintains the recommendation of the 9/11 Commission to make the overall figure of the intelligence budget public, while keeping the specific breakdown classified. This measure was seen as a key step in insuring the openness and transparency of the government, while maintaining the secrecy needed for intelligence operations.

The House is scheduled to consider its version of intelligence reform tomorrow. Unlike the Senate bill, the House version — which is currently being reviewed by the Rules Committee — includes multiple provisions not called for the by the 9/11 Commission, including anti-immigrant measures and expansion of Patriot Act powers. The ACLU has called for the House leadership to strip such measures to create a bill reflective of the Commission’s findings, a sentiment echoed by several members of the Commission.