FC: ACLU on new anti-terror bill with expiration date: Oppose it!

[Declan McCullagh <declan () well com>]

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Date: Mon, 01 Oct 2001 20:36:17 -0400
To: declan () well com
From: Barry Steinhardt <Bsteinhardt () aclu org>
Subject: Re: FC: Congress drafts new "anti-terror" bill -- with
  expiration date
In-Reply-To: <5.0.2.1.0.20011001200442.00a53960 () mail well com>

Declan,

The new compromise Anti-terrorism still represents a significant threat to 
civil liberties. I have attached the ACLU's statement, which can also be 
found online at http://www.aclu.org/news/2001/n100101b.html

Barry Steinhardt


House 'Compromise' Terrorism Bill Fails to Protect Civil Liberties;
ACLU Says Many Provisions Go Far Beyond Anti-Terrorism Needs
FOR IMMEDIATE RELEASE
Monday, October 1, 2001

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:
Immigration
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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