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ACLU Says Congress Should Treat Administration Proposal Carefully;
Says Many Provisions Go Far Beyond Anti-Terrorism Needs
Thursday, September 20, 2001
Says Many Provisions Go Far Beyond Anti-Terrorism Needs
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.
Immigration
- 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.
Criminal Justice
- 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.
"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."
For more information see our new clearinghouse at:
http://www.aclu.org/difficultdays/
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