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Section-by-Section Analysis of DSEA

Interested Persons Memo: Section-by-Section Analysis of Justice Department
draft “Domestic Security Enhancement Act of 2003,” also known as “PATRIOT Act II”

To: Interested Persons

From: Timothy H. Edgar, Legislative Counsel

Date: February 14, 2003

Re: Section-by-Section Analysis of Justice Department draft “Domestic
Security Enhancement Act of 2003,” also known as “Patriot Act
II”

The Department of Justice (DOJ) has been drafting comprehensive anti-terrorism
legislation for the past several months. The draft legislation, dated January
9, 2003, grants sweeping powers to the government, eliminating or weakening
many of the checks and balances that remained on government surveillance,
wiretapping, detention and criminal prosecution even after passage of the
USA PATRIOT Act, Pub. L. No. 107-56, in 2001.

Among its most severe problems, the bill

Diminishes personal privacy by removing checks on government power, specifically
by

Diminishes public accountability by increasing government secrecy; specifically,
by

Diminishes corporate accountability under the pretext of fighting terrorism;
specifically, by

Undermines fundamental constitutional rights of Americans under overbroad
definitions of “terrorism” and “terrorist organization”
or under a terrorism pretext; specifically by

Unfairly targets immigrants under the pretext of fighting terrorism; specifically
by

Given the bipartisan controversy that has arisen in the past from DOJ’s
attempts to weaken basic checks and balances that protect personal privacy
and liberty, the DOJ’s reluctance to share the draft legislation is
perhaps understandable. The DOJ’s highly one-sided section-by-section
analysis reveals the Administration’s strategy is to minimize far-reaching
changes in basic powers, as it did in seeking passage of the USA PATRIOT Act,
by characterizing them as minor tinkering with statutory language designed
to bring government surveillance authorities, detention and deportation powers,
and criminal penalties “up to date.”

This ACLU section-by-section analysis of the text of the legislation, however,
reveals that the DOJ’s modest descriptions of the powers it is seeking,
and the actual scope of the authorities it seeks, are miles apart. The USA
PATRIOT Act undercut many of the traditional checks and balances on government
power. The new draft legislation threatens to fundamentally alter the constitutional
protections that allow us as Americans to be both safe and free. If adopted,
the bill would diminish personal privacy by removing important checks on government
surveillance authority, reduce the accountability of government to the public
by increasing government secrecy, further undermine fundamental constitutional
rights of Americans under an already overbroad definition of “terrorism,”
and seriously erode the right of all persons to due process of law.

Our detailed section-by-section analysis follows.

Title I – Diminishing Personal Privacy by Removing Checks on
Government Intelligence and Criminal Surveillance Powers

Title I amends critical statutes that govern intelligence surveillance and
criminal surveillance. Both forms of surveillance are subject to Fourth Amendment
limitations. See Katz v. United States, 389 U.S. 347 (1967) (criminal surveillance);
United States v. United States District Court (“Keith”), 407 U.S.
297 (1972) (intelligence surveillance). Yet while traditional searches are
governed by warrant procedures largely drawn from the common law, wiretapping
and other forms of electronic surveillance are governed by standards and procedures
embodied in two federal statutes that respond to Katz and Keith – Title
III of the Omnibus Crime Control and Safe Streets Act of 1968, 28 U.S.C. §§
2510-22, which governs surveillance of criminal suspects, and the Foreign
Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-63
which governs surveillance of foreign powers and agents of a foreign power
for intelligence purposes.

Making it easier for the government to initiate surveillance and wiretapping,
including of United States citizens and lawful permanent residents, through
the secret Foreign Intelligence Surveillance Court (Sections 101-111).
The draft bill’s proposed amendments to FISA attack key statutory concepts
that are critical to providing appropriate limits and meaningful judicial
supervision over wiretapping and other intrusive electronic surveillance for
intelligence purposes. These limits were approved by Congress in 1978 because
of a history of abuse by government agents who placed wiretaps and other listening
devices on political activists, journalists, rival political parties and candidates,
and other innocent targets. These so-called “national security wiretaps”
and other covert surveillance were undertaken without any court supervision
and without even the slightest suspicion that the targets of such surveillance
were involved in criminal activities or were acting on behalf of any foreign
government or political organization. This pattern of abuse culminated in
the crimes of Watergate, which led to substantial reforms and limits on spying
for intelligence purposes.

FISA represented a compromise between civil libertarians, who wanted to ban
“national security wiretaps” altogether, and apologists for Presidential
authority, who claimed such unchecked intelligence surveillance authority
was inherent in the President’s Article II power over foreign relations.
The Congress chose to authorize intelligence wiretaps without evidence of
crime, subject to a number of key restraints. One of these restraints, separating
intelligence gathering from criminal investigations, has been significantly
weakened by the USA PATRIOT Act. The USA PATRIOT Act abolished the “primary
purpose” test – the requirement that FISA surveillance could only
be used if the primary purpose of surveillance was gathering of foreign intelligence,
and not criminal prosecution or some other purpose.

The draft bill eliminates or substantially weakens a number of the remaining
constraints on intelligence surveillance approved by Congress. Taken as a
whole, these changes go a long way to undermine limits on intelligence surveillance
essential to preserving civil liberties and to preventing a repeat of the
wiretapping abuses of the J. Edgar Hoover and Watergate eras.

Authorizing the government to initiate wiretaps and other electronic surveillance
on Americans who have no ties to foreign governments or powers (sec. 101).
This section would permit the government to obtain a wiretap, search warrant
or electronic surveillance orders targeting American citizens and lawful permanent
residents even if they have no ties to a foreign government or other foreign
power. Under FISA, the government need not show, in many circumstances, probable
cause that the target of a wiretap is involved in any criminal activity. FISA
requires an alternate showing – probable cause that the target is acting
on behalf of a foreign government or organization, i.e., a “foreign
power.” Section 101 of the draft bill eliminates this requirement for
individuals, including United States citizens, suspected of engaging in “international
terrorism.” It does so by redefining individuals, including United States
citizens or lawful residents, as “foreign powers” even if they
are not acting on behalf of any foreign government or organization. The “foreign
power” requirement was a key reason FISA was upheld in a recent constitutional
challenge. See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence
Surveillance Ct. of Rev. Nov. 18, 2002) (while FISA requires no showing of
probable cause of crime, it is constitutional in part because it provides
“another safeguard . . . that is, the requirement that there be probable
cause to believe the target is acting ‘for or on behalf of a foreign
power.’”)[1]

Permitting surveillance of the lawful activities of United States citizens
and lawful permanent residents if they are suspected of gathering information
for a foreign power (sec. 102). United States citizens and lawful permanent
residents who are not violating any law should not be subject to wiretapping
or other intrusive electronic surveillance. The FISA contains dual standards
for non-U.S. persons and for U.S. persons with respect to surveillance of
“intelligence gathering activities,” i.e., the gathering of information
for a foreign government or organization. These standards reflect the judgment
of Congress that U.S. persons should not face electronic surveillance unless
their activities “involve or may involve” some violation of law
(as, for example, would certainly be the case with respect to any activity
in furtherance of terrorism or other crime). For non-U.S. persons, this showing
does not have to be made, i.e., the gathering of information by foreign persons
for foreign powers is enough to trigger FISA. The draft bill (at section 102)
applies the lower standard to U.S. persons.

Lawful gathering of information for a foreign organization does not necessarily
pose any threat to national security. This amendment would permit electronic
surveillance of a local activist who was preparing a report on human rights
for London-based Amnesty International, a “foreign political organization,”
even if the activist was not engaged in any violation of law. By eliminating
this need to show some violation of law may be involved before authorizing
surveillance of U.S. persons, Congress could well succeed in rendering FISA
unconstitutional, by eliminating another key reason FISA was upheld in a recent
court challenge. See In re Sealed Case No. 02-001, slip op. at 42 (Foreign
Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (holding that FISA surveillance
of U.S. persons meets Fourth Amendment standards in part because a surveillance
order may not be granted unless there is probable cause to believe the target
is involved in activity that may involve a violation of law).

Permitting the government, under some circumstances, to bypass the Foreign
Intelligence Surveillance Court altogether (Sections 103, 104). Section 103
gives the Attorney General the power to authorize intelligence wiretaps and
other electronic surveillance without permission from any court, including
the Foreign Intelligence Surveillance Court, for fifteen days, after an attack
on the United States or force authorization resolution from the Congress.
Under existing federal statutes, a formal declaration of war by the Congress
triggers a host of civil liberties consequences, including authorization by
the Attorney General to engage in intrusive electronic surveillance for up
to fifteen days without any court order at all. The draft bill expands this
power dramatically by eliminating judicial review for any surveillance under
FISA for a period up to fifteen days pursuant to (1) an authorization of force
resolution by the Congress or (2) a “national emergency” created
by an attack on the United States. For surveillance under the latter circumstance,
no action by Congress would be required. Once the President has unilaterally
decided such an attack has occurred, the Attorney General could unilaterally
decide what constitutes an “attack” on the United States, creating
an emergency that justifies what would otherwise be plainly illegal wiretaps.

DOJ’s rationale for this change is that declarations of war are rare
and the statute should be updated to reflect this. This argument fundamentally
misconstrues the purpose of this provision. The normal FISA process, including
review by the Foreign Intelligence Surveillance Court, was Congress’s
attempt to impose meaningful limits over national security surveillance conducted
without a formal declaration of war and for continuing threats that cannot
easily by defined by reference to traditional war powers. To use Congress’
grant of surveillance authority following a declaration of war as an argument
to permit surveillance even in the absence of such action by Congress is a
fundamental intrusion on Congress’s war powers.

The draft bill (at section 104) also expands special surveillance authority,
available for up to a year with no court order at all, for property “under
the open and exclusive control of a foreign power” by permitting eavesdropping
on “spoken communications.” This expansion of authority leaves
intact the current requirement that such surveillance can go forward only
if the Attorney General certifies under oath that “there is no substantial
likelihood that the surveillance will acquire the contents of any communication
to which a United States person is a party.” Still, the new authority
would plainly involve eavesdropping on communications protected by the Fourth
Amendment, as it would inevitably result in listening – without any
court order – to the conversations in the United States of anyone who
might be using telephones, computers, or other devices owned by a foreign
government, political organization, or company owned by a foreign government.

There are serious questions about whether the secret review of surveillance
orders by the Foreign Intelligence Surveillance Court, which by its nature
can only hear the government’s side of the case, is effective in protecting
Americans’ civil liberties. These amendments would bypass judicial review
under FISA altogether.

Sheltering federal agents engaged in illegal surveillance without a court
order from criminal prosecution if they are following orders of high Executive
Branch officials (Section 106). This section would encourage unlawful
intelligence wiretaps and secret searches by immunizing agents from criminal
sanctions if they conduct such surveillance, even if a reasonable official
would know it is illegal, by claiming they were acting in “good faith”
based on the orders of the President or the Attorney General. In order to
ensure that FISA was successful in bringing national security surveillance
under the rule of law, Congress not only provided a process for legal intelligence
surveillance, but also imposed criminal penalties on any government agent
who engages in electronic surveillance outside that process. Congress also
provided a “safe harbor” for agents who engaged in surveillance
that was approved by the Foreign Intelligence Surveillance Court, even if
such surveillance was not in fact authorized by FISA. The draft bill (at section
106) substantially undercuts the deterrent effect of criminal sanctions for
illegal wiretaps or electronic surveillance by expanding the “safe harbor”
to include surveillance not approved by any court, but simply on the authorization
of the Attorney General or the President.

Of course, the very spying abuses FISA was designed to prevent were undertaken
with the authorization of high-ranking government officials, including the
President. For example, President Nixon authorized just such a covert search
of the Brookings Institution, whom he and his staff suspected of possessing
classified information that had been leaked to the press. As described by
Nixon biographer Richard Reeves:

Nixon sat up. “Now if you remember Huston’s plan [to engage in
covert surveillance] . . .”

“Yeah, why?” Haldeman said.

Kissinger said: “But couldn’t we go over? Now, Brookings has
no right to classified–”

The President cut him off, saying, “I want it implemented. . . . Goddamit
get in there and get those files. Blow the safe and get them.”[2]

Any government official acting within the scope of his employment already
enjoys “qualified immunity” from charges of violating Fourth Amendment
or other constitutional rights – i.e., an official cannot be punished
or held civilly liable if a reasonable government official would not have
known his or her conduct was illegal. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Providing additional protection to government officials who engage
in wiretaps or searches without a court order, where a reasonable official
would know those wiretaps or searches were clearly illegal, would take away
any incentive for such officials to question an illegal authorization by the
President, Attorney General or other high official.

Further expanding pen register and trap and trace authority for intelligence
surveillance of United States citizens and lawful permanent residents beyond
terrorism investigations (Section 107). This section allows the government
to use intelligence pen registers and trap and trace surveillance devices
to obtain detailed information on American citizens and lawful permanent residents,
including telephone numbers dialed, Internet addresses to which e-mail is
sent or received, and the web addresses a person enters into a web browser,
even in an investigation that is entirely unrelated to terrorism or counterintelligence.
In so doing, it erodes a limitation on this authority that was part of the
USA PATRIOT Act.

The standard for obtaining a pen register or trap and trace order is very
low, requiring merely that a government official certify that the information
it would reveal is “relevant” to an investigation. Under section
216 the USA PATRIOT Act, the government was given new power to obtain this
sensitive information for Internet communications merely by making this certification.
This expansion was a serious erosion of meaningful judicial oversight of government
surveillance because it expanded the authority to get court orders for pen
registers and trap and trace devices in a way that permitted the government
to access far more detailed content than was available before such authority
was extended to the Internet.

For United States citizens and lawful permanent residents, Congress limited
the new authority to terrorism and counterintelligence investigations. This
section would remove that limitation, opening the door to expanded government
surveillance of United States citizens and lawful permanent residents under
controversial government law enforcement technologies like CARNIVORE and the
Total Information Awareness Pentagon “super-snoop” program whose
development Congress just voted to limit.

Providing cleared, appointed counsel for the Foreign Intelligence Surveillance
Court of Review (Section 108). While we welcome the provision providing
for an appointed, cleared counsel to argue in favor of a ruling of the Foreign
Intelligence Surveillance Court when the government appeals its decisions,
it should not substitute for participation, in appropriate cases, by interested
civil liberties organizations. The Foreign Intelligence Surveillance Court
approves government orders for electronic surveillance and physical searches
under FISA. It meets in secret and never hears from anyone other than the
government officials seeking its approval. If an order is denied, the government
has the right to seek review of that denial in a special three-judge court
of appeals, called the Foreign Intelligence Surveillance Court of Review.
No one can appeal the approval of a surveillance order, as the target of the
surveillance is not notified. Instead, the only challenge to an approved order
would occur later, if the information obtained is to be used in a criminal
prosecution, in a suppression motion before the district court. If the information
is used only for intelligence purposes, there is never an opportunity to challenge
the lawfulness of an order approving surveillance.

This section seeks to remedy the problems inherent in a one-sided proceeding,
at least with respect to appeals before the Court of Review, by permitting
the court to appoint an advocate with security credentials to defend the decision
reached in the initial hearing before the Foreign Intelligence Surveillance
Court. While the ACLU welcomes this effort to inject an adversary process
into the Court of Review’s proceedings, it warns that appointing a cleared
lawyer should not be a substitute for independent advocacy by civil liberties
or other interested organizations. Organizations independent of the government
should be permitted to file briefs amicus curiae and, in appropriate cases,
to participate in oral argument as interveners on behalf of Americans who
may face increased surveillance as a result of an interpretation of FISA being
urged by the government. For this reason, Congress should adopt legislation
providing clear procedures that require the publication of opinions by the
Foreign Intelligence Surveillance Court and the Court of Review, with redactions
for classified information.

Providing new contempt powers for Foreign Intelligence Surveillance Court
without sufficient due process (Section 109). This section seeks to give
the Foreign Intelligence Surveillance Court the power to enforce its judgments
through explicit contempt powers. While the ACLU does not object to the enforcement
of lawful court orders, the draft bill does not specify a means by which parties
seeking to challenge an order of the court can vindicate their rights, such
as by a motion to quash. If the court is to be given this authority, both
the Fourth Amendment and due process require a mechanism, which currently
does not exist, for a party facing a possible contempt sanction to appear
before the Foreign Intelligence Surveillance Court and be heard, prior to
the imposition of any sanctions.[3]

Using an overbroad definition of terrorism that could cover tactics used
by some protest groups as a predicate for criminal wiretapping and other surveillance
under Title III (Sections 120, 121). Current law provides, at 18 U.S.C.
§ 2516, a list of “predicate offenses” that permit the government
to conduct wiretaps and other intrusive surveillance. The list is quite lengthy,
but reflects the judgment of Congress that electronic surveillance is a particularly
intrusive investigative method that is not appropriate for all criminal investigations
but should be reserved only for the most serious crimes.

Title 18 already provides that any terrorism crime defined by federal law
is a predicate for Title III surveillance. See 18 U.S.C. § 2516(q) (providing
that any violation of sections 2332, 2332a, 2332b, 2339A, or 2339B is a predicate
offense for Title III surveillance). The draft bill, however, extends the
predicate even further, to cover offenses that are not defined as terrorism
crimes under federal law, but do fit the definition of either international
or domestic terrorism, i.e., they involve acts that are a violation of federal
or state law, are committed with the intent of affecting government policy,
and are potentially dangerous. See 18 U.S.C. § 2331. It is this broad
definition that sweeps in the activities of a number of protest organizations
that engage in civil disobedience, including People for the Ethical Treatment
of Animals and Operation Rescue. Since true crimes of terrorism are already
predicates for Title III surveillance, providing this authority is not necessary
to listen to the telephone conversations and monitor the e-mail traffic of
terrorist groups. To ensure Title III wiretaps are not used to monitor the
activities of protest organizations, Congress should reject this provision
and should also amend the definition of “terrorism.”

Creating a new category of “domestic security surveillance”
that relaxes judicial oversight of electronic surveillance of Americans engaged
in entirely domestic activity (Section 122). This section authorizes looser
standards for judicial oversight of wiretaps of electronic surveillance orders
of Americans for entirely domestic activity under a new theory of domestic
intelligence gathering. Intelligence-based surveillance and criminal surveillance
are conducted under different rationales, but both are subject to Fourth Amendment
protections. See Katz and Keith, supra. Title III, which governs criminal
surveillance, provides significantly more robust protections than those afforded
for surveillance of foreign intelligence conducted in the United States pursuant
to FISA. Title III requires more frequent and continuing supervision of the
surveillance order by the authorizing judge, and subsequent notice to the
target of the surveillance order unless the government shows adverse results
would occur if notice were given.

Title III governs electronic surveillance in domestic criminal and terrorism
cases; the looser intelligence standards provided by FISA, including the ability
to conduct surveillance in virtually complete secrecy, have always been reserved
for “agents of a foreign power.” The proposed amendment would
fundamentally redefine domestic intelligence gathering through wiretaps and
other intrusive surveillance to include entirely domestic security investigations.
In so doing, DOJ claims it is accepting the “invitation” of the
Supreme Court in Keith to devise specific standards for domestic intelligence
investigations. It is far from clear the Supreme Court ever issued such an
“invitation” because of the ambiguity of the term “domestic
intelligence.” FISA is, in one sense, a purely domestic intelligence
gathering power; it governs gathering of intelligence on United States soil
and authorizes surveillance of United States citizens. Under this understanding
of “domestic intelligence,” Congress has already provided far
looser standards for such surveillance than it has for criminal investigations.

In any event, the draft bill’s redefinition of intelligence creates
what is in essence a twilight zone between the criminal standards provided
in Title III and the foreign intelligence standards for targets involved with
“foreign powers” in FISA. That twilight zone, as conceived by
the draft bill, has significant implications for Americans’ right to
privacy. Under the DOJ’s proposed standards, for domestic terrorism,
the normal time period for domestic surveillance orders under Title III would
triple from 30 days to 90 days, or, in the case of pen registers and trap
and trace devices, from 60 days to 120 days; the judge would be prevented
from requiring more frequent reports than once every 30 days, limiting the
judge’s ability to provide meaningful supervision, and absolute secrecy
could be imposed on the government’s claim of harm to the “national
security,” a standard that provides no meaningful judicial check.

Providing for general surveillance orders covering users of high technology
devices with multiple functions, thus lowering the bar to surveillance
(Section 124). This section would, in some cases, relieve the government from
showing probable cause that would justify reading a person’s e-mail
if it had shown probable cause that a person’s telephone conversations
would be relevant to criminal activity. It authorizes a general warrant that,
in the physical world, would allow officers who could show probable cause
to search only one drawer of a desk to obtain a court order allowing a search
of the entire building.

The proposed change would erode the privacy rights of users of multi-function
devices. Multi-function devices represent an important advance in communications
technology. Such devices can combine the functions of a telephone, fax machine
and computer with Internet access, or those of a mobile phone and text messaging
service. Another example is the popular TiVo video storage device which both
records television programs received through a cable or satellite system and
communicates a user’s preferences through a computer modem.

Unfortunately, the draft bill continues a DOJ trend of using advances in
technology to justify eroding privacy standards. While technology is constantly
changing, the principles of the Constitution remain constant. Specificity
is a basic requirement for any constitutional judicial process permitting
government searches or seizures. The Fourth Amendment states that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things
to be seized.” The fact that the government can show probable cause
to monitor e-mail, for example, does not mean that it should also have authority
to listen to the target’s telephone conversations. Of course, if the
government can satisfy the probable cause or other application standard with
respect to all of the functions of a device, there is no reason it cannot
be granted approval to monitor those functions in a single order. However,
the draft bill would make approval for each function automatic, providing
that “communications transmitted or received through any function performed
by the device may be intercepted and accessed unless the order specifies otherwise
. . .”

In addition, an order that covers, for example, a personal computer that
carries voice or data transmission, also permits “upon a showing as
for a search warrant . . . the retrieval of other information (whether or
not constituting or derived from a communication whose interception the order
authorizes).” While somewhat oblique, this language would permit the
seizure of any information stored on a computer’s hard drive if the
government obtains a order to intercept communications through any of the
computer’s communications functions and makes the required showing.

There is no reason that the purchase of new technology should diminish the
user’s privacy. Whether one owns one device with several communications
functions, or separate communications devices, the government’s obligations
to show probable cause that the monitoring of communications or the seizure
of data will provide some evidence of crime should be the same.

Expanding nationwide search warrants so they do not have to meet even
the broad definition of terrorism in the USA PATRIOT Act (Section 125).
The USA PATRIOT Act gave the government authority to issue nationwide search
warrants in terrorism investigations, based on the extremely broad definition
of domestic and international terrorism contained in 18 U.S.C. § 2331.
This definition covers any violation of law, state or federal, that involves
“acts dangerous to human life” and is committed with the requisite
intent. The draft bill (at section 125) expands the use of nationwide search
warrants to cover any offense listed as a federal terrorism crime under 18
U.S.C. § 2332b(g)(5)(B). In general, this is unlikely to be needed as
the crimes listed as terrorism crimes are either violent offenses or at least
“involve” dangerous acts. To the extent such offenses do not at
least “involve” violence or dangerous acts, they should not be
terrorism crimes at all and should not trigger special terrorism powers that
are unavailable in order criminal investigations. If Congress grants additional
authority for nationwide search warrants for certain offenses listed as terrorism
crimes, its authority to get nationwide search warrants under an overbroad
definition of international and domestic terrorism should be curtailed, by,
for example, eliminating that authority or amending the definition of terrorism.

Giving the government secret access to credit reports without consent
and without judicial process (Section 126). This section would allow the
government to secretly obtain anyone’s credit report without their consent
and without any judicial procedure.

The government should not have access to sensitive personal information which
has been collected for business purposes on the same basis as businesses,
because the government’s powers – for example, to compel questioning
before a grand jury, arrest, deport, or incarcerate – are far greater
than the powers of any business.

In any event, the draft bill does not, as the heading states, provide “equal
access” for government to such reports; rather, the statute greatly
expands access to credit reports by authorizing the government to obtain these
reports without consent, notice to the person to whom the credit report pertains,
and without a court order. Credit reports are available to business with a
“legitimate business need” but only with the consent of the person
whose credit report is being examined, such as when that person applies for
a loan or a job.

Anyone who has applied for a job or a mortgage and encountered a problem
because of a false credit report – which could the result of identity
theft, simple error, or malice – knows how difficult it can be to get
errors corrected. Under this provision, however, the consequences of an erroneous
credit report are far more serious than when credit reports are used for business
purposes. Under this provision, because credit reports can be obtained without
notice or consent, there is no opportunity for the person to contest an erroneous
report.

Creating new terrorism “administrative subpoenas” and providing
new penalties for failure to comply with written demands for records that
permit the government to obtain information without prior judicial approval
(Sections 128 and 129). Under these sections, government can demand –
and enforce its demands through civil and criminal penalties – documents
and other information from a business, such as an Internet Service Provider,
or any individual without prior court approval. Administrative subpoenas provide
the government with the ability to compel production of documents or information
without obtaining a court order. While such subpoenas can be challenged, after
they are issued, through a motion to quash, such a motion must be brought
by the party challenging the subpoena, who incurs the trouble and expense
of challenging the subpoena.

The draft bill authorizes the use of administrative subpoenas and what the
DOJ calls “national security letters” to obtain information in
terrorism investigations. These sections reduce judicial oversight of terrorism
investigations by relegating the role of the judge to considering challenges
to orders already issued, rather than ensuring such orders are drawn with
due regard for the privacy and other interests of the target. Furthermore,
by granting the government power to compel production of records or other
information, such as computer files, without first going to court, the draft
bill will likely increase the administrative burden imposed on small businesses,
particularly high-technology firms, who are facing ever-increasing demands
for records in both civil cases and criminal investigations.

Title II – Diminishes Public Accountability and Due Process
By Increasing Government Secrecy

Authorizing secret arrests in immigration and other cases where the detained
person is not criminally charged (Section 201). After September 11, 2001,
well over a thousand persons whom the government said were connected to its
terrorism investigation were detained on immigration charges or material witness
warrants without the government revealing who they were or other basic information
about their arrests that has always been available to the public and the press.
Never before had our government sought to detain persons within the United
States in secret; a public process for depriving any individual of liberty
is an essential component of the rule of law in a democratic society. As Alexander
Hamilton made clear in the Federalist papers more than two centuries ago,
a policy that allows “confinement of the person, by secretly hurrying
him to jail, where his sufferings are unknown or forgotten” is a “dangerous
engine of arbitrary government.”[4] “The requirement that arrest
books be open to the public is to prevent any ‘secret arrests,’
a concept odious to a democratic society . . . .” Morrow v. District
of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).

The government’s policy of secret arrests came under fire in both federal
and state court in lawsuits brought by the American Civil Liberties Union
and other civil liberties and press freedom groups. So far, every court to
reach the merits of the argument has agreed that the government’s secret
arrests policy is not supported by law, is not necessary to protect national
security, and violates fundamental principles reflected in state and federal
open records laws.[5] When confronted with the ruling in New Jersey state
court, the DOJ responded not by complying or appealing the ruling to a higher
court, but by issuing a regulation preempting that state’s law. It has
now chosen to ask Congress to cut short the federal lawsuit in the much the
same way.

Threatening public health by severely restricting access to crucial information
about environmental health risks posed by facilities that use dangerous chemicals
(Section 202). This section would deprive communities and environmental organizations
of critical information concerning risks to the community contained in “worst
case scenarios” prepared under federal environmental laws. Under section
112(r) the Clean Air Act, 47 U.S.C. § 7212(r), corporations that use
potentially dangerous chemicals must prepare an analysis of consequences of
the release of such chemicals to surrounding communities. This information
is absolutely critical for community activists and environmental organizations
seeking to protect public health and safety, and the environment, and by ensuring
compliance by private corporations with environmental and health standards
and alerting local residents to the hazards to which they may be exposed.

The proposed amendment (sec. 202) severely restricts access to such information,
limiting such access to reading rooms in which copies could not be made and
notes could not be taken, and excising from the reports such basic information
as “the identity or location of any facility or any information from
which the identity or location of the facility could be deduced.” “Official
users” are given greater access, but these users only include government
officials, and government whistleblowers who reveal any information restricted
under this section commit a criminal offense, even if their motivation was
to protect the public from corporate wrongdoing or government neglect.

Harming fair trial rights for American citizens and other defendants by
limiting defense attorneys from challenging the use of secret evidence in
criminal cases (Section 204). This section would inhibit the ability of
the accused to defend themselves against criminal charges based in part on
classified information. The Classified Information Procedures Act (CIPA),
18 U.S.C. App. 3 §§ 1-16, provides a special procedure to govern
an extraordinary situation – where the government seeks to use information
in a criminal case which is classified by Executive Order without revealing
in open court any more information than is necessary to provide the defendant
with a fair trial under the Sixth Amendment.[6]

CIPA entrusts to federal district judges the “gatekeeper” function
of determining what classified information can be excluded from open court,
what information can be given to the defense in summary form, and what essential
information must be disclosed to the defendant to ensure his right to contest
the accusations against him and to ensure that evidence the jury or other
factfinder considers is reliable, having been tested in an adversarial proceeding.
The judge has the power to consider a government request to delete information
or substitute a summary in an ex parte proceeding, i.e., without the benefit
of hearing from the defense. CIPA does not give the government a right to
make its case in the absence of the defense; instead, the judge determines
how much of the prosecution’s submission to examine ex parte and in
camera, i.e., in secret. The proposed amendment (sec. 204) would seriously
undermine the judge’s initial gatekeeping role by compelling a judge,
at the request of the prosecution, to determine whether and how to redact
classified information without the benefit of an adversary hearing. In other
words, the amendment would take away the judge’s authority, under current
law, to hear defense objections to a prosecution request for authorization
to delete specified items of classified information from documents relevant
to the defense’s case.

CIPA strikes the right balance between the government’s national security
interests and the defendant’s right to see the evidence against him
or her. This amendment undermines that balance.

Gagging grand jury witnesses in terrorism from discussing their testimony
with the media or the general public, thus preventing them from defending
themselves and denying the public information it has a right to receive under
the First Amendment (Section 206). This section would gag grand jury witnesses
so that they could not publicly respond to false information about them leaked
to the press. Rule 6(e) of the Federal Rules of Criminal Procedure imposes
a general obligation of secrecy requiring attorneys and grand jurors to refrain
from commenting on “matters occurring before the grand jury.”
In theory, grand jury secrecy is imposed primarily to protect the reputation
of individuals who become subject to a grand jury investigation. In practice,
such secrecy does not always afford much protection, as law enforcement officials
who leak information to reporters in violation of Rule 6(e) are rarely discovered
and prosecuted.

Grand jury secrecy is not imposed on witnesses, who are free to speak about
their testimony to friends, associates or to the media. In practice, this
limitation is essential to afford targets of a grand jury investigation the
opportunity to defend themselves against leaked accusations and media speculation.
Under the proposed amendment (section 206), witnesses in terrorism investigations
could be unfairly smeared in the media and be deprived from the ability to
defend themselves under pain of a criminal sanction.

Title III – Diminishing Personal Privacy by Removing Checks
on Local Police Spying; Undermining Genetic Privacy; Removing Checks on Foreign-Directed
Searches and Arrests, Even for Dictatorships; Sharing Sensitive Immigration
Information With Local Police

Allowing for the sampling and cataloguing of innocent Americans’
genetic information without court order and without consent (Sections
301-306). The proposed bill authorizes collection of genetic information of
persons who have not been convicted of a crime for terrorism investigation
purposes, and the entering of that sensitive information into a database.
At a minimum, such collection should not be permitted on persons who have
not be convicted of serious crimes unless a judge decides to permit such collection
by issuing a court order on the basis of probable cause to believe the information
will assist in a criminal investigation. Furthermore, personal genetic information
must be destroyed within a reasonable time, such as when a suspect is cleared,
to ensure it is not available for misuse by the government or private industry
at a later date.

Drawing a DNA sample involves an intrusion on personal privacy that is far
more invasive than simply taking a fingerprint. A fingerprint is useful only
as a form of identification. By contrast, a DNA sample includes such intimate,
personal information as the markers for thousands of diseases, legitimacy
at birth, or (as science advances) aspects of an individual’s personality
such as his or her temperament. In addition, this personal information is
not unique to the individual alone, but also provides clues to the genetic
traits of everyone in that individual’s bloodline. Genetic discrimination
is not merely a distant artifact of the discredited eugenics movement of the
first half of the Twentieth Century, but is widespread today among private
employers, and is (in most states) perfectly legal.[7]

The potential misuse of DNA information contained in a database requires
careful safeguards before such information is collected, and concerning the
storage of such information. For example, no forensic purpose is served by
saving the DNA itself, as opposed to just the information contained in the
DNA that proves identity. The proposed legislation fails to include such safeguards.

Permitting, without any connection to anti-terrorism efforts, sensitive
personal information to be shared with local and state law enforcement; opening
sensitive visa files to local police (Section 311). This section would
authorize the sharing of sensitive consumer credit information and educational
records with state and local officials without any limits and without any
connection to a terrorism investigation. While sharing of sensitive information
in the possession of the federal government should be permitted in some circumstances
to accomplish anti-terrorism objectives, such records should not be disseminated
broadly for other purposes. The draft legislation contains no requirement
that sharing of sensitive information with state and local officials be limited
to anti-terrorism investigations; instead, such information can be shared
simply “to assist the official receiving that information in the performance
of official duties of that official.” Special authority to share sensitive
personal records should not be granted so blithely.

The draft legislation also provides for sharing of sensitive visa information
with state and local officials, including state and local law enforcement,
on a broad basis, without requirement that such sharing of information be
connected to anti-terrorism investigations. In authorizing such sharing of
sensitive immigration files, DOJ is at odds with the views of many state and
local police departments, who fear involvement in immigration enforcement
matters may undermine their ability to establish the trust and confidence
of immigrant communities. Absent such trust, many local and state police are
concerned that members of immigrant communities will fear contacting the police
if they are a victim of crime or a witness to crime.[8]

DOJ also appears to be at odds with the White House, which has assured the
public that the Bush Administration was not interested in expanding the role
of state or local law enforcement in immigration matters except with respect
to terrorism investigations. As White House Counsel Alberto Gonzalez made
clear last year, “Only high-risk aliens who fit a terrorist profile”
would be placed in the National Crime Information Center (NCIC) database,
which is available to state and local law enforcement officials, and the Administration’s
conclusion that state and local police had “inherent authority”
to arrest such persons was limited to this group of non-citizens.[9] Such
a narrow policy would be completely undermined by the adoption of this broad
language.

Terminating court-approved limits on police spying designed to prevent
McCarthy-style law enforcement persecution based on political or religious
affiliation (Section 312). In the name of “intelligence gathering,”
police departments in many cities spied on innocent members of the public
who were active in churches, community groups and political organizations.
Federal courts, responding to civil rights lawsuits urging an end to such
spying, issued decrees prohibiting this spying absent some reason to believe
those individuals were involved in criminal or terrorist activity.

Police spying on political and religious activity is not a relic of some
distant past. Recently, citizens in Denver, Colorado, were shocked to learn
that the Denver Police Department had kept approximately 3,048 illegal files
on peaceful protest groups including Amnesty International and the Nobel Peace
Prize-winning American Friends Service Committee. The file on the American
Friends Service Committee labeled them a “criminal extremist”
group. The files pre-dated September 11, 2001, and were not collected as a
response to the terrorist attacks.

The draft bill ends these decrees using language patterned after the Prison
Litigation Reform Act. Eliminating these sensible, court-approved limits on
local police spying would chill dissent, making Americans afraid to join protest
groups and activist organizations, attend rallies, or express their views
on controversial policies such as abortion or the war in Iraq.

Loosening sensible protections on police monitoring of political and religious
activity will not make us safer from terrorism. During the years the FBI illegally
spied on individuals exercising their rights under the First Amendment, including
such civil rights leaders as Dr. Martin Luther King, Jr., resources were diverted
and not a single instance of violence was prevented. Freeing local police
to spy on innocent individuals is not likely to be any more productive. It
only makes us less safe as resources are diverted from more productive investigations,
and less free, as individuals find themselves entered into a police database
for activities that are constitutionally protected.

Granting immunity to businesses that provide information to the government
in terrorism investigations, even if their actions are taken with disregard
for their customers’ privacy or other rights and show reckless disregard
for the truth (Section 313). This section would prevent a person harmed
by a business’s disclosure of information about them, including false
information, from holding the business accountable. It would encourage false
terrorism tips that could result in ruined reputations, lengthy detentions
and even violence. Under this section, a business is given immunity from liability
if it shares information voluntarily with the government, based on merely
on its “reasonable belief” that its actions would help the government
prevent or investigate terrorism.

This section resurrects many of the same problems with Operation TIPS that
led Congress to ban that program last year. Enormous controversy was sparked
by the Bush Administration’s Operation TIPS plan to enlist businesses
with access to private homes or otherwise able to obtain sensitive personal
information without any court supervision. Under the plan, utility operators
or others would be encouraged to report “suspicious activity”
through a special federal hotline, where the reports would be placed in a
central computer database. The program was rife with potential for abuse,
including the reporting of false or erroneous information, and the concern
that businesses and private individuals would allow their private prejudices
to determine who qualifies as “suspicious.” When Congress learned
of “Operation TIPS” and considered its potential dangers, it banned
the program in legislation creating the new Department of Homeland Security.
See Homeland Security Act of 2002, § 880, Pub. L. No. 107-296, 116 Stat.
2135, 2245 (2002).

The draft legislation poses many of the same dangers as the government’s
earlier, more elaborate private spying program. False information can ruin
a person’s reputation, lead to an erroneous arrest and even to violence.
Those who are subject to such false reports should have legal recourse if
the business or individual responsible for making the report acted irresponsibly.
Defamation is the most likely legal action resulting from a false tip to law
enforcement. Further protection for defamation defendants would weaken the
incentive for a business to think twice before using a false tip to law enforcement
to settle a private score or indulge in invidious discrimination. The proposed
language paradoxically would increase the incentive for reports of information
of dubious validity, diverting law enforcement from more serious potential
crimes.

Granting additional immunity is unnecessary because there is already ample
protection in state law against frivolous lawsuits. Truth is always a defense
to defamation and states also generally provide a qualified privilege against
defamation claims involving reports to law enforcement even where the information
proves to be false, protecting a defendant against liability unless malice
can be shown. See, e.g., Restatement (Second) of Torts §§ 598, 600.

Permitting searches, wiretaps and surveillance of United States citizens
on behalf of foreign governments – including human rights abusers –
in the absence of Senate-approved treaties (Sections 321-22). This section
would authorize the DOJ to help foreign governments – including those
that systematically abuse human rights and do not respect the rule of law
– invade Americans’ privacy even when the United States Senate
has failed or refused to approve a treaty allowing such assistance with such
a government. Under current law, the United States does not engage in covert
surveillance or issue search warrants on behalf of foreign nations unless
the Senate has approved a mutual legal assistance treaty. If a foreign nation
with which the United States does not have such a treaty requires information
from a United States citizen or resident for its own judicial process, it
may still obtain that information by asking the assistance of a United States
district court in issuing an order to take testimony or obtain “a document
or other thing” under 28 U.S.C. § 1782, but it may not issue search
warrants or certain surveillance orders. This limitation ensures that that
the Senate consents to more intrusive surveillance on behalf of a foreign
nation before Americans’ privacy can be invaded at the behest of a foreign
government. The draft bill (at section 321) sweeps aside this sensible limitation
altogether.

These limitations on foreign-directed searches, wiretaps and surveillance
orders do not need to substantially impede the investigation and prosecution
of terrorism, as Congress has provided “universal jurisdiction”
over many serious terrorism offenses. In other words, such offenses are a
crime under United States law and subject to U.S. jurisdiction even if committed
in a foreign nation. For such offenses, a United States Attorney could obtain
the full panoply of searches and surveillance orders to aid in the investigation
of that crime, even if such a crime was also being investigated by a foreign
nation under its own laws. Such information could then easily be shared with
the foreign nation, under information sharing provisions approved by Congress
in the Homeland Security Act. See Homeland Security Act of 2002, §§
891-99, Pub. L. No. 107-296, 116 Stat. 2135, 2252-58.

Permitting arrests and extraditions of United States citizens and other
persons to a foreign country in the absence of a Senate-approved treaty and
without judicial inquiry into the extraditing country’s human rights
record (Section 322). Among other things, this section allows, on the
determination of the Attorney General, a United States citizen or other person
to be sent to a foreign dictatorship to be prosecuted even if an American
judge would find that the extradition request was made on account of his or
her race, nationality or political opinions. It allows the government to send
Americans and others abroad to face foreign criminal charges in foreign criminal
courts for a host of charges without any of the protections that normally
appear in Senate-approved extradition treaties, and strips any judge hearing
an extradition request of the authority to consider the fairness of the requesting
country’s judicial system or its human rights record.

Section 322 authorizes extradition in the absence of an extradition treaty
or in excess of limits imposed by existing extradition treaties. Extradition
involves arresting an individual, including a United States citizen, because
a foreign government accuses that person of violating a foreign law. It is
subject to basic constitutional limitations. See, e.g., Valentine v. United
States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (holding that extradition may
take place only in accordance with law because of “the fundamental consideration
that the Constitution creates no executive prerogative to dispose of the liberty
of the individual”). One important safeguard that protects Americans
from facing trial in a potentially unfriendly nation, or in a nation that
does not respect fundamental fair trial principles or abuses human rights,
is the requirement that such extradition take place where the Senate has,
by ratifying an extradition treaty, approved of the practice of a foreign
nation sufficiently to permit such extradition.

Another, critical safeguard is the requirement of judicial supervision of
extradition requests. This section expressly prohibits the judge from considering
any of the following:

Under this legislation, an American can be sent abroad to face trial under
before the courts of a foreign dictatorship, and an American judge has no
ability under the statute to even inquire as to the fairness of that country’s
court system or the reasons behind its criminal accusations.

Current basic due process and constitutional limits on extradition do not
need to substantially impede the prosecution of terrorism, as Congress has
provided “universal jurisdiction” over many serious terrorism
offenses. In order words, such offenses are a crime under United States law
even if committed in a foreign nation. For such offenses, a United States
Attorney could charge a person suspected of a terrorism crime committed in
a foreign nation if the United States lacked an extradition treaty.

Title IV –Undermining Fundamental Constitutional Rights Of
Americans Under Overbroad Definitions Of “Terrorism” And “Terrorist
Organization”; Reducing Due Process in Administrative Proceedings for
Pilots; Undermining Financial Privacy and Due Process

Further criminalizing association – without any intent to commit
specific terrorism crimes – by broadening the crime of providing material
support to terrorism, even if support is not given to any organization listed
as a terrorist organization by the government (Section 402). Under this
section, a person who provides “material support” for “terrorism”
as defined under the USA PATRIOT Act, could face a conviction, and lengthy
prison terms, even if they did not provide any support for an organization
listed as a terrorist organization. The definition of terrorism is not linked
to any specific crimes, but covers all dangerous acts that are a violation
of any federal or state law and are committed to influence government policy.
See 18 U.S.C. § 2331. The definition arguably covers some protest activities,
such as those used by Operation Rescue or by protesters in Vieques Island,
Puerto Rico, as such tactics involve dangerous acts that are a violation of
law and are committed to influence the government.

This section modifies the requirement to the crime of providing material
support for terrorism, 18 U.S.C. § 2339A, which is a separate crime from
providing material support for a designated terrorist organization, 18 U.S.C.
§ 2339B. Under current law, a person, including an American citizen,
can only be prosecuted for providing material support for terrorism if the
support is provided with the intent to further one of a list of terrorism
crimes. A person can be prosecuted for providing resources to a terrorist
organization that is designated by the government under the much broader definition
of terrorism that arguably covers some protest groups, but only if such an
organization has been designated as an international terrorist organization
by the Secretary of State. See 18 U.S.C. § 2339B. In each case, the person
effectively has some notice that what they are doing is prohibited: either
the activity they support is a crime or the group whose lawful activities
they would support has been publicly designated a terrorist organization.
The amendment takes away this notice by permitting prosecution for providing
support for the activities of an undesignated organization.

Groups such as Greenpeace arguably could be designated an international terrorist
organization, because of the overbroad definition, but the government has
not so designated them. Under this provision, however, the determination of
whether to apply the terrorism definition to protest groups belongs not with
high Executive Branch officials, but to the prosecutor who chooses to invoke
the new criminal definition.

Creating a new, separate crime of using encryption technology that could
add five years or more to any sentence for crimes committed with a computer
(Section 404). Under this section, any federal felony committed with encryption
technology that is now commonly part of computer software could be punished
by an additional five years (or more, for a repeat offense.) The criminal
conduct will not be any different; the only reason for additional penalties
will be that the defendant used a certain technology to commit the offense.
Here again, the DOJ’s description of the crime differs from the language
proposed in the draft text. DOJ says it makes it a separate federal crime
for a person to “knowingly and willfully use[] an encryption technology
to conceal any incriminating communication . . . .” However, the draft
text contains no requirement that the defendant intend to conceal anything;
the crime is complete if the defendant intentionally uses an encryption technology
in the commission of a crime. Thus, a simple fraud crime could, if committed
using garden-variety encryption technology available with most standard web
browsers, carry an additional jail term of up to five years regardless of
whether the defendant intended to conceal his activity by using encryption.

Shifting burden of proof to defendant to obtain pretrial release for a
laundry list of terrorism crimes (Section 405). Under this section, the
right to bail, protected by the Eighth Amendment, is denied for a host of
crimes said to be likely to be committed by terrorists unless the defendant
is able to overcome the presumption created by the statute. A major reason
for the Constitution’s prohibition against excessive bail is that defendants
are presumed innocent until and unless they have been convicted in a court
of law. Despite this, under certain circumstances, the Constitution permits
pretrial detention. In general, the government must establish, by clear and
convincing evidence, that no release conditions can adequately ensure the
appearance of the defendant at trial or the safety of the community.[10]

There is no reason to exacerbate the constitutional problems posed by the
presumption against pretrial release for some drug crimes by expanding that
presumption to additional crimes. Before the government imprisons a person
who has not been convicted of any crime, the government must bear the burden
of establishing that the defendant is a flight risk or a danger to the community.
This should not be hard to convince a court with respect to true terrorism
defendants; there is no need to apply a pretrial detention presumption to
a laundry list of offenses that are simply said to be likely to be committed
by terrorists.

Imposing potentially life-long supervision and eliminating statute of
limitations for nonviolent crimes listed as terrorism crimes, even where they
create no risk of death or serious injury (Sections 408 and 410). Under
section 408, a defendant who has served his or her sentence for a nonviolent
crime listed as a terrorism crime could face life-long supervision, and possible
reincarceration if those supervision conditions are violated, even if the
crime for which he or she was convicted posed no risk of death or even serious
injury. Likewise, section 410 removes entirely the statute of limitations
for such nonviolent offenses. Under the USA PATRIOT Act, certain severe consequences
follow from the commission of certain terrorism crimes, including the potential
for life-long supervision, even after serving a full criminal sentence. In
drafting the USA PATRIOT Act, Congress provided for a modest and very sensible
limitation for such consequences – they only follow where the offense
results in, or creates a foreseeable risk of, death or serious injury.

Indeed, it is not clear why any offense that would not at least create a
risk of serious injury deserves to be labeled terrorism at all. The draft
bill (at sections 408 and 410) eliminates this sensible restriction, by applying
the severe consequence of lifetime supervision and removal of the statute
of limitations even for crimes which do not create even a risk of death or
serious injury. While DOJ uses the example of a computer crime causing severe
financial damage or the provision of material support to an organization labeled
as terrorist, it does not explain why such actions, if they truly were serious
enough to be considered terrorism under a common sense rather than a legal
definition, would not easily meet the requirement of causing at least a risk
of serious injury.

Creating 15 new death penalties, including a new death penalty for “terrorism”
under a definition which could cover acts of protest such as those used by
Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results
(Section 411). The draft bill dramatically expands the death penalty, creating
fifteen separate new death penalty crimes by defining a new death sentence
that sweeps in the remaining crimes listed as federal crimes of terrorism
in 18 U.S.C. § 2332b(g)(5)(B) that do not provide for the death penalty.
Among others, these include the provision of material support for the lawful
activities of an organization labeled a terrorist organization by the government,
18 U.S.C. § 2339B. While the DOJ labels this provision as providing for
the death penalty for terrorist “murders,” there is no language
in the text that requires any showing by the government of an intent by the
defendant to kill; it is sufficient that death results from the defendant’s
actions.

Even more troubling, the draft bill is not content to create fifteen new
death penalties, but also contains language that sweeps in any violation of
state or federal law that is committed under the definition of domestic or
international terrorism contained in 18 U.S.C. § 2331. As a result, activities
that (1) involve “acts dangerous to human life,” (2) are a violation
of any state or federal law, and (3) are committed in order to influence government
or the population by intimidation or coercion become death-penalty eligible
if death results. Arguably, this definition could fit some protest activities,
such as those used by Operation Rescue, People for the Ethical Treatment of
Animals, or Greenpeace. For example:

Under this provision, protesters could be charged with the death penalty
as the result of a tragedy. While dangerous protest tactics can be punished
under the law, they are not terrorism and should not be treated as if they
were.

Reducing due process for pilots accused of posing a security threat
(sec. 409). While the government has authority to revoke a pilot’s license
on a sufficient showing that the pilot presents a risk to air security, such
denials must be accompanied by a fair opportunity for the accused pilot to
be heard in an administrative hearing and to have judicial review of any final
determination. The draft bill’s procedures for revoking pilot licenses
are deficient in this respect. They do not clearly provide for an administrative
hearing (as opposed to an administrative determination), and judicial review
is provided only through a direct appeal to the United States Courts of Appeals,
who are unlikely to have the time or resources to conduct a thorough review
of the administrative record.

Further undermining privacy in financial transactions and due process
in asset forfeiture and other civil proceedings (subtitle B; secs. 421-28).
Continued amendment of money laundering and asset forfeiture laws have resulted
in a serious erosion of financial privacy and of due process rights in asset
forfeiture and other proceedings. These sections continue that trend:

Title V – Stripping Americans of All Their Rights as U.S. Citizens;
Unfairly Targeting Immigrants Under the Pretext of Fighting Terrorism

Stripping even native-born Americans of all of the rights of United States
citizenship if they provide support for “terrorism,” allowing
them to be indefinitely imprisoned in their own country as undocumented aliens.
(Section 501). This section would permit the government to punish certain
criminal activity by stripping even native-born Americans of U.S. citizenship,
thereby depriving them of any nationality at all and potentially relegating
them forever to imprisonment as undocumented immigrants in their own country.
Among the activities that could be punished this way are providing material
support for an organization – including a domestic organization –
labeled as a terrorist organization by the government, even if the support
was only for the lawful activities of that organization.

The Fourteenth Amendment provides that “All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.” While Americans
do have the right to give up their citizenship in the United States, the Constitution
does not give Congress any power to take away from an American his or her
status as a citizen even for participating in crime in time of war. See Trop
v. Dulles, 356 U.S. 86 (1958) (conviction by court martial of crime of desertion
during World War II could not constitutionally lead to loss of citizenship,
even though crime was committed voluntarily). Rather, as the Supreme Court
has made clear, every citizen of the United States enjoys “a constitutional
right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.”
Afroyim v. Rusk, 387 U.S. 253 (1967) (citizenship could not be forfeited merely
by voting in foreign election without the requisite intent to abandon U.S.
citizenship).

While DOJ is correct to observe that certain voluntary acts, such as serving
in a foreign army, can serve to terminate U.S. citizenship, these “expatriating
acts” must indicate some desire to show an affinity with a foreign sovereign.
Only acts that indicate such a desire to relinquish American nationality can
be made the basis for a finding that strips an American of his or her citizenship.
See Vance v. Terrazas, 444 U.S. 252, 262 (1980).

Moreover, it is the government’s burden to establish that the expatriating
act was committed with the intent of relinquishing citizenship, a showing
this section attempts to short-circuit. See id. at 261 (holding that the “trier
of fact must . . . conclude that the citizen not only voluntarily committed
the expatriating act prescribed in the statute, but also intended to relinquish
his citizenship.”) Expatriating acts are not defined by reference to
how repugnant or offensive they are, or by whether they constitute serious
crimes, but by whether they show the individual has an intent to attach himself
or herself to another sovereignty. Thus, while serving in a foreign army or
voting in a foreign election may indicate an intent to abandon American nationality,
the commission of a series of grisly murders, or the control of a vast criminal
enterprise plainly do not, although the former are legal while the latter
are serious crimes.

Providing support to a terrorist organization, which possesses no sovereignty
under international law, is a crime, see 18 U.S.C. § 2339A, but plainly
does not indicate that the individual desires to attach himself or herself
to the allegiance of a foreign nation or to abandon U.S. citizenship in the
way that, for example, serving in a foreign army might. Indeed, expatriation
in the draft bill is not even limited to providing material support to foreign
terrorist organizations, as wholly domestic organizations can be designated
as terrorist organizations under 8 U.S.C. § 1182(a)(3). In addition,
expatriation could result from support of organizations “engaged in
hostilities” against the “national security interests” of
the United States – which could mean anything -- not just against the
United States or its people. Finally, the draft bill would allow expatriation
even for support of the lawful, humanitarian activities of an organization
that the United States has labeled a “terrorist organization,”
which belies DOJ’s analogy of supporting terrorism by serving in a foreign
army engaged in hostilities against the United States.

Targeting undocumented workers with extended jail terms for common immigration
offenses (Sections 502 and 505). Under the pretext of fighting terrorism,
this section – which applies to low-level, garden variety immigration
offenses that have nothing to do with terrorism at all – unfairly targets
undocumented workers. The United States census revealed that more than seven
million undocumented immigrants are living in the United States. At present,
the United States is engaged in negotiations with Mexico in part to decide
whether to permit greater numbers of temporary workers to come to the United
States legally, and whether such a program would also provide a path to legal
status for undocumented Mexicans or other undocumented immigrants.

Under the pretext of fighting terrorism, this section short-circuits the
national debate over immigration policy by substantially increasing penalties
for a number of very common immigration crimes often committed by undocumented
immigrants. These include unlawful entry (INA § 275(a)(1)), reentry after
removal (INA § 276), and failing to register with the immigration authorities
(INA § 264(e)). The draft bill (at sec. 505) also provides that the offense
of failing to depart after a deportation order (INA § 243) is a continuing
offense – meaning that, in practice, no statute of limitations will
apply. Increasing these penalties now would almost certainly not prove an
effective deterrent to illegal immigration, as the threat of penalties for
illegal immigration has never been sufficient to outweigh the causes of immigration
including the pull of economic opportunity and the conditions in the home
country, but could frustrate our relations with Mexico and other important
U.S. allies seeking to negotiate a new framework for immigration policy.

Providing for summary deportations, even of lawful permanent residents,
whom the Attorney General says are a threat to national security (Section
503). Under this provision, any immigrant, including longtime lawful permanent
residents, may be expelled from the United States on the unilateral determination
of the Attorney General that they are a threat to “national security,”
which is defined as “the national defense, foreign relations, or economic
interests of the United States.” INA § 219(c)(2). A person facing
removal under this section will be separated from his or her family and community
without ever being able to effectively answer the government’s true
reasons for labeling him or her a security risk.

Immigrants and other non-citizens involved in terrorism are deportable under
current law,[11] and suspected terrorists are subject to mandatory detention
during any immigration or criminal proceedings.[12] The purpose of this amendment
is to eliminate due process entirely for immigrants, including lawful permanent
residents, accused of crimes or terrorism by permitting their expulsion merely
on the Attorney General’s fiat. It is based on the fundamentally flawed
notion that non-citizens in the United States do not possess the right to
fair treatment under the law, a notion that the Supreme Court has repeatedly
rejected. See Zadvydas v. Davis 533 U.S. 678, 693 (2001) (reiterating long-standing
constitutional rule that “the Due Process Clause applies to all ‘persons’
within the United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent”).

The proposal is another DOJ initiative that flies in the face of President
Bush’s stated opposition to the use of secret evidence in immigration
proceedings on the basis that fair treatment should be afforded everyone in
America. Under the proposal, a non-citizen, including a lawful permanent resident,
accused of posing a risk to national security could be detained and deported
without having committed any violation of law and without ever knowing the
basis of the accusation against him or her. The provision would essentially
authorize a repeat of the “Palmer raids,” a discredited episode
in the 1920s that involved widespread mass deportations and widespread abuse
of the rights of law abiding Russian and other immigrants during a wave of
anti-immigrant and nativist hysteria.

DOJ originally asked for this summary deportation power shortly after September
11 in its initial drafts of the USA PATRIOT Act. It was firmly rejected, on
a bipartisan basis, by a Congress deeply concerned about the use of secret
evidence and core due process in immigration proceedings. It should be rejected
again.

Completely abolishing fair hearings for lawful permanent residents convicted
of even minor criminal offenses through a retoractive “expedited removal”
procedure, and preventing any court from questioning the government’s
unlawful actions by explicitly exempting these cases from habeas corpus
(Section 504). Under this new “expedited removal” provision, any
immigrant who was convicted even of a minor criminal offense long ago could
be deported under a special procedure that provides for no immigration hearing
at all and restricts the federal courts from questioning whether the government’s
actions are within the law. The expedited removal provision, which currently
applies only to some classes of undocumented immigrants, would now apply to
all immigrants, including lawful permanent residents. “Expedited removal”
would be available for crimes which are called “aggravated felonies”
(and other crimes) but can be as minor as a shoplifting offense for which
a suspended sentence of one year or more is imposed. No discretionary relief
is available, regardless of the compelling humanitarian circumstances of any
particular case, and the provision applies retroactively. The provision also
unconstitutionally exempts these cases entirely from habeas corpus, 28 U.S.C.
§ 2241, which protects the right of all persons in custody – including
immigrants – to a judicial determination of the legality of the government’s
actions.

In 1996, Congress adopted harsh laws that greatly expanded the number and
types of crimes that could lead to automatic deportation – i.e., deportation
without any possibility to even apply for discretionary relief from the Attorney
General. At that time, DOJ went even further than Congress, arguing that the
law applied retroactively, so that even immigrants who had been granted relief
for crimes committed years or decades earlier and had turned their lives around
would now face automatic deportation. DOJ also argued that its controversial
retroactive interpretation of the law could not be questioned by any federal
court, including the Supreme Court.

In 2001, the Supreme Court firmly rejected DOJ’s position, finding
both that Congress had not intended the 1996 immigration laws to apply retroactively
and that restrictions on judicial review still left intact the federal court’s
power to correct unlawful government action through a writ of habeas corpus
under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289 (2001). (“Judicial
intervention in deportation cases is unquestionably required by the Constitution.”)
At the same time, in Congress, a growing number of members of Congress, on
both sides of the aisle, began to reconsider the scope of the 1996 laws, culminating
the decision of the House Judiciary Committee in 2002 to approve H.R. 1452,
the Family Reunification Act, which would restore discretionary relief for
some lawful permanent residents accused of relatively minor offenses, particularly
if they had come to the United States at an early age.

The draft bill would seriously undermine fair treatment of lawful permanent
residents. It would deny fundamental due process in immigration proceedings
by completely eliminating an actual hearing. It would disregard the Supreme
Court’s St. Cyr ruling, stripping the judiciary of its core functions
in such cases.

The provision attempts to insulate the Attorney General’s “expedited
removal” decision from judicial review by taking a step never taken
by Congress since the Civil War – expressly denying access to habeas
corpus, 28 U.S.C. § 2241, to prevent the federal courts from correcting
unlawful actions by the immigration authorities. Because of the jurisdiction
provided by by 28 U.S.C. § 2241, the Supreme Court in St. Cyr was able
to consider the merits and found that Congress had not intended to apply the
1996 laws retroactively. This court-stripping provision violates the Constitution,
because the Constitution protects habeas corpus – the Great Writ that
keeps detention within the boundaries of the rule of law.[13]

Expanding the Attorney General’s authority to designate a country
to which an immigrant could be deported, and permitting such deportation even
if there is no effective government in such a country (Section 506). This
section would authorize the Attorney General to dump immigrants ordered removed
in any country in the world, and even to areas which are lawless and have
no governing authority whatsoever. This section would have a devastating effect
on Somalis and other Africans. While the world’s attention is focused
elsewhere, a tragedy of extraordinary proportions has been building in Africa,
where in Somalia, for example, effective government has broken down as rival
armed groups vie for power. For this reason, a federal district court is now
entertaining a plea from Somalis to halt deportations to that country. The
Immigration and Nationality Act does not provide for forced deportation of
anyone to a country or region that lacks any form of government, nor should
it. Deportation should not be a death sentence, as such deportation could
easily become. Nor is it good foreign policy to simply dump into lawless regions
non-citizens ordered removed from the United States because such a policy
that will simply exacerbate the severe challenges facing such areas of the
world.

--------------------------------------------------------------------------------

ENDNOTES

[1] This and other similarities to criminal wiretap requirements were essential
to the review court’s holding that “FISA as amended is constitutional
because the surveillances it authorizes are reasonable.” Id. at 56.
The ACLU does not agree with that conclusion, but simply notes that even a
court with the broadest view of the government’s surveillance power
has found the requirement that the government show probable cause that a target
is acting for a foreign power is constitutionally based.

[2] Richard Reeves, PRESIDENT NIXON: ALONE IN THE WHITE HOUSE 335 (2001).
The plan was apparently not implemented, despite President Nixon’s order,
but certainly contributed to the pattern of abuse that finally lead to the
Watergate break-in and cover up.

[3] In the absence of such a process, a party could well be barred from challenging
the lawfulness of the underlying order in any proceeding to enforce contempt
sanctions. See Walker v. City of Birmingham, 388 U.S. 307, 317 (1967) (holding
civil rights marchers could not challenge the lawfulness of an injunction
forbidding a peaceful march in proceedings to enforce contempt sanctions).

[4] THE FEDERALIST No. 84 (Hamilton) (emphasis in original) (quoting 1 Blackstone,
COMMENTARIES ON THE LAWS OF ENGLAND 335).

[5] See American Civil Liberties Union of New Jersey v. County of Hudson,
No. HUD-L-463-02 (N.J. Super. Ct. Law Div. April 12, 2002), rev’d on
other grounds, 779 A.2d 629 (N.J. Super. App. Div. 2002); Center for National
Security Studies v. United States Dep’t of Justice, 215 F. Supp. 2d
94 (D.D.C. 2002) (appeal pending before D.C. Circuit).

[6] “In all criminal prosecutions, the accused shall enjoy the right
. . . to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; [and] to have compulsory process for obtaining
witnesses in his favor . . . .” U.S. Const. amend. 6.

[7] See Testimony of Barry Steinhardt, Associate Director of the American
Civil Liberties Union, Before the House Judiciary Committee, Subcommittee
on Crime, March 23, 2000 (reporting an American Management Association survey
in 1997 that reported that six out of ten employers responding use genetic
screening information for employment purposes.)

[8] The National Immigration Forum has posted on its website a list of statements
by local and state police from across the country, all opposing any attempt
to enlist them in the enforcement of immigration laws. See Opposition to Local
Enforcement of Immigration Laws, updated October 1, 2002, available at: http://www.immigrationforum.org/currentissues/articles/100102_quotes.htm [1]

[9] See Letter from White House Counsel Alberto R. Gonzalez to Migration
Policy Institute, June 24, 2002, available at: http://www.migrationpolicy.org/files/whitehouse.pdf [2]

[10] See United States v. Salerno, 481 U.S. 739, 751 (1987) (holding that
pretrial detention is constitutional “[w]hen the Government proves by
clear and convincing evidence that an arrestee presents an identified and
articulable threat to an individual or the community”).

[11] See INA § 237(a)(4)(B) (“Any alien who has engaged, is engaged,
or at any time after admission engages in any terrorist activity . . . is
deportable.”)

[12] USA PATRIOT Act, § 412, Pub. L. No. 107-56, 115 Stat. 321 (2001),
codified at INA § 236A.

[13] Another court-stripping provision, in Section 504(d), would give the
government power to deport people before a federal judge could hear their
challenges, even where the law clearly allows judicial review, by posing serious
barriers to the judge's ability to stay deportation while considering the
case. The provision would overturn rulings of four federal appeals courts
that found that the very stringent standard that applies for a judge to grant
a request to stop deportation altogether under by INA § 242(f)(2) does
not apply to a court’s ability to temporarily delay deportation while
it considers the case. See, e.g., Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002)
(on appeal from habeas review of removal order); Beijani v. INS, 271 F.3d
670 (6th Cir. 2001); Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en
banc); Lal v. Reno, 2000 WL 831801 (7th Cir. June 26, 2000) (unpublished);
but see Weng v. Attorney General, 287 F.3d 1335 (11th Cir. 2002). As one court
noted, in rejecting the interpretation the DOJ is now seeking to enact in
this legislation, “This would effectively require the automatic deportation
of large numbers of people with meritorious claims, including every applicant
who presented a case of first impression.” Andreiu, 253 F.3d at 48

~ February 14, 2003

Source URL:
http://www.loyalnine.com/civil_liberties/section_section_analysis_dsea

Links:
[1] http://www.immigrationforum.org/currentissues/articles/100102_quotes.htm
[2] http://www.migrationpolicy.org/files/whitehouse.pdf