House 'Compromise' Terrorism Bill Fails to Protect Civil Liberties; ACLU Says Many Provisions Go Far Beyond Anti-Terrorism Needs

October 1, 2001 12:00 am

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WASHINGTON — The American Civil Liberties Union today urged the House of Representatives to reject proposed “compromise” anti-terrorism legislation, saying that many of its provisions continue to go far beyond any powers conceivably necessary to fight terrorism in the United States.

“This legislation still does not meet the basic test of maximizing our security with minimizing the impact on our civil liberties,” said Laura W. Murphy, Director of the ACLU’s Washington National Office. “The compromise bill would have a long-term negative impact on basic freedom in America that cannot be justified.”

Among the bill’s most troubling provisions, the ACLU said, are measures that would allow for indefinite detention without meaningful judicial review to non-citizens ordered removed from the country and minimize judicial supervision of electronic surveillance by law enforcement authorities. Another troubling provision would expand the already broad definition of terrorism, which could lead to large-scale investigations of American citizens for engaging in civil disobedience.

“Unless the significant civil liberties issues are resolved by the House Judiciary Committee,” said Gregory T. Nojeim, Associate Director of the ACLU’s Washington Office, “we will urge members of Congress to oppose this legislation.”

Following are highlights of the civil liberties implications of the compromise legislation introduced by Judiciary Committee Chairman James Sensenbrenner, R-WI, and Ranking Minority Member John Conyers, D-MI:


The ACLU said that the new Sensenbrenner-Conyers bill would confer new and unprecedented detention authority on the Attorney General based on vague and unspecified predictions of threats to the national security.

Specifically, the ACLU said that the new legislation would permit the indefinite administrative detention of any non-citizen ordered deported to a country that would not accept him or her, based merely on the Attorney General’s certification that he has “reasonable grounds to believe” the non-citizen endangers national security.

“Very few countries will agree to take back one of their citizens if the United States has labeled him a terrorist,” Nojeim said. “Even though it says it has compromised on indefinite detention, under this legislation, the Administration still achieves the same result of being able to imprison indefinitely someone who has never been convicted of a crime.”

In addition, the ACLU said that the legislation provides for no meaningful review of the Attorney General’s certification because the standards for the certification are so vague that judges would have no yardstick for which to judge the appropriateness of the detention and the review could be had only once, not years later while the non-citizen remained detained based on a stale determination by the Attorney General.

The ACLU also said that the new Sensenbrenner-Conyers bill would endanger the family members of asylum seekers by allowing the Secretary of State to inform the government of the country alleged to engage in persecution that he was seeking asylum. As a result, people entitled to asylum would not seek protection out of fear that the persecuting government would attack family members and colleagues left behind.

Wiretapping and Intelligence Surveillance

On the question of wiretapping and intelligence surveillance, the ACLU said that the wiretapping proposals in the Sensenbrenner-Conyers legislation continue to sound two themes: they minimize the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification, and they permit use of intelligence investigative authority to by-pass normal criminal procedures that protect privacy.

The ACLU said that it was specifically concerned about the following provisions of the new Sensenbrenner-Conyers legislation:

1. The bill would allow the government to use its intelligence gathering power to circumvent the 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 compromise bill would allow use of FISA surveillance authority even if the primary purpose is a criminal investigation if intelligence surveillance remained a “significant” purpose.

2. 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 new 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.

3. 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 included a similar provision.

The ACLU noted that the FBI already has broad authority to monitor telephone and Internet communications. Most of the changes proposed in the bill would apply not just to surveillance of terrorists, but instead to all surveillance in the United States.

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, for example, that wiretaps can be obtained for the crimes involved in terrorist attacks, including destruction of aircraft and aircraft piracy.

The FBI also already 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.

Criminal Justice

One of the overarching problems with the bill is the very broad definition of “terrorism” that already exists under federal law.

Under the original Administration provision – and remaining in the Sensenbrenner-Conyers legislation – the broad definition of terrorism combined with the proposed harsher criminal penalties could lead to thousands of protestors at an anti-war rally to be labeled as conspirators in a terrorist plot.

Even House Intelligence Committee Chairman Porter Goss, R-FL, told the Los Angeles Times that he is troubled by the implications of a broad definition of terrorism. “The trouble is, ‘terrorism’ is a very broad word and it lends itself to a lot of mischief for people who would abuse common sense,” he told the Times.

The ACLU said it supports limiting the definition of terrorism to cases involving death or serious bodily injury.

The other major concern is that the bill allows for the broad sharing of sensitive information with intelligence agencies, including the CIA, the NSA, the INS and the Secret Service. It would permit sharing information gathered through wiretaps and confidential grand jury information without any safeguards regarding the future use or dissemination of such information.

“In sum,” the ACLU’s Murphy said, “the proposed compromise legislation does include some improvements from the Administration’s original legislation. But we are still deeply concerned that the compromise measure continues to weaken essential checks and balances on the authority of federal law enforcement in a manner that is unwarranted.”

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