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

From: Declan McCullagh (declanat_private)
Date: Mon Oct 01 2001 - 17:54:56 PDT

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    Date: Mon, 01 Oct 2001 20:36:17 -0400
    To: declanat_private
    From: Barry Steinhardt <Bsteinhardtat_private>
    Subject: Re: FC: Congress drafts new "anti-terror" bill -- with
       expiration date
    In-Reply-To: <5.0.2.1.0.20011001200442.00a53960at_private>
    
    Declan,
    
    The new compromise Anti-terrorism still represents a significant threat to 
    civil liberties. I have attached the ACLU's statement, which can also be 
    found online at http://www.aclu.org/news/2001/n100101b.html
    
    Barry Steinhardt
    
    
    House 'Compromise' Terrorism Bill Fails to Protect Civil Liberties;
    ACLU Says Many Provisions Go Far Beyond Anti-Terrorism Needs
    FOR IMMEDIATE RELEASE
    Monday, October 1, 2001
    
    WASHINGTON - The American Civil Liberties Union today urged the House of
    Representatives to reject proposed "compromise" anti-terrorism legislation,
    saying that many of its provisions continue to go far beyond any powers
    conceivably necessary to fight terrorism in the United States.
    "This legislation still does not meet the basic test of maximizing our
    security with minimizing the impact on our civil liberties," said Laura W.
    Murphy, Director of the ACLU's Washington National Office. "The compromise
    bill would have a long-term negative impact on basic freedom in America that
    cannot be justified."
    Among the bill's most troubling provisions, the ACLU said, are measures that
    would allow for indefinite detention without meaningful judicial review to
    non-citizens ordered removed from the country and minimize judicial
    supervision of electronic surveillance by law enforcement authorities.
    Another troubling provision would expand the already broad definition of
    terrorism, which could lead to large-scale investigations of American
    citizens for engaging in civil disobedience.
    "Unless the significant civil liberties issues are resolved by the House
    Judiciary Committee," said Gregory T. Nojeim, Associate Director of the
    ACLU's Washington Office, "we will urge members of Congress to oppose this
    legislation."
    Following are highlights of the civil liberties implications of the
    compromise legislation introduced by Judiciary Committee Chairman James
    Sensenbrenner, R-WI, and Ranking Minority Member John Conyers, D-MI:
    Immigration
    The ACLU said that the new Sensenbrenner-Conyers bill would confer new and
    unprecedented detention authority on the Attorney General based on vague and
    unspecified predictions of threats to the national security.
    Specifically, the ACLU said that the new legislation would permit the
    indefinite administrative detention of any non-citizen ordered deported to a
    country that would not accept him or her, based merely on the Attorney
    General's certification that he has "reasonable grounds to believe" the
    non-citizen endangers national security.
    "Very few countries will agree to take back one of their citizens if the
    United States has labeled him a terrorist," Nojeim said. "Even though it
    says it has compromised on indefinite detention, under this legislation, the
    Administration still achieves the same result of being able to imprison
    indefinitely someone who has never been convicted of a crime."
    In addition, the ACLU said that the legislation provides for no meaningful
    review of the Attorney General's certification because the standards for the
    certification are so vague that judges would have no yardstick for which to
    judge the appropriateness of the detention and the review could be had only
    once, not years later while the non-citizen remained detained based on a
    stale determination by the Attorney General.
    The ACLU also said that the new Sensenbrenner-Conyers bill would endanger
    the family members of asylum seekers by allowing the Secretary of State to
    inform the government of the country alleged to engage in persecution that
    he was seeking asylum. As a result, people entitled to asylum would not
    seek protection out of fear that the persecuting government would attack
    family members and colleagues left behind.
    Wiretapping and Intelligence Surveillance
    On the question of wiretapping and intelligence surveillance, the ACLU said
    that the wiretapping proposals in the Sensenbrenner-Conyers legislation
    continue to sound two themes: they minimize the role of a judge in ensuring
    that law enforcement wiretapping is conducted legally and with proper
    justification, and they permit use of intelligence investigative authority
    to by-pass normal criminal procedures that protect privacy.
    The ACLU said that it was specifically concerned about the following
    provisions of the new Sensenbrenner-Conyers legislation:
    1. The bill would allow the government to use its intelligence
    gathering power to circumvent the standard that must be met for criminal
    wiretaps. Currently FISA surveillance, which does not contain many of the
    same checks and balances that govern wiretaps for criminal purposes, can be
    used only when foreign intelligence gathering is the primary purpose. The
    compromise bill would allow use of FISA surveillance authority even if the
    primary purpose is a criminal investigation if intelligence surveillance
    remained a "significant" purpose.
    2. Under current law, a law enforcement agent can get a pen
    register or trap and trace order requiring the telephone company to reveal
    the numbers dialed to and from a particular phone. It must simply certify
    that the information to be obtained is "relevant to an ongoing criminal
    investigation." This is a very low level of proof, far less than probable
    cause. The judge must grant the order upon receiving the certification. The
    new bill would extend this low threshold of proof to Internet communications
    that are far more revealing than numbers dialed on a phone. For example, it
    would apparently apply to law enforcement efforts to determine what websites
    a person had visited. This is like giving law enforcement the power - based
    only on its own certification -- to require the librarian to report on the
    books you had perused while visiting the public library. This is extending
    a low standard of proof - far less than probable cause -- to "content"
    information.
    3. In allowing for "nationwide service" of pen register and
    trap and trace orders, the bill would further marginalize the role of the
    judiciary. It would authorize what would be the equivalent of a blank
    warrant in the physical world: the court issues the order, and the law
    enforcement agent fills in the places to be searched. This is not consistent
    with the important Fourth Amendment privacy protection of requiring that
    warrants specify the place to be searched. Under this legislation, a judge
    would be unable to meaningfully monitor the extent to which her order was
    being used to access information about Internet communications. The Senate
    amendment to the Commerce, Justice and State Appropriations bill included a
    similar provision.
    The ACLU noted that the FBI already has broad authority to monitor telephone
    and Internet communications. Most of the changes proposed in the bill would
    apply not just to surveillance of terrorists, but instead to all
    surveillance in the United States.
    Law enforcement authorities -- even when they are required to obtain court
    orders - have great leeway under current law to investigate suspects in
    terrorist attacks. Current law already provides, for example, that wiretaps
    can be obtained for the crimes involved in terrorist attacks, including
    destruction of aircraft and aircraft piracy.
    The FBI also already has authority to intercept these communications without
    showing probable cause of crime for "intelligence" purposes under the
    Foreign Intelligence Surveillance Act. Little is known about the extent of
    this wiretapping, other than that FISA wiretaps now exceed wiretapping for
    all domestic criminal investigations. The standards for obtaining a FISA
    wiretap are lower than the standards for obtaining a criminal wiretap.
    Criminal Justice
    One of the overarching problems with the bill is the very broad definition
    of "terrorism" that already exists under federal law.
    Under the original Administration provision - and remaining in the
    Sensenbrenner-Conyers legislation - the broad definition of terrorism
    combined with the proposed harsher criminal penalties could lead to
    thousands of protestors at an anti-war rally to be labeled as conspirators
    in a terrorist plot.
    Even House Intelligence Committee Chairman Porter Goss, R-FL, told the Los
    Angeles Times that he is troubled by the implications of a broad definition
    of terrorism. "The trouble is, 'terrorism' is a very broad word and it lends
    itself to a lot of mischief for people who would abuse common sense," he
    told the Times.
    The ACLU said it supports limiting the definition of terrorism to cases
    involving death or serious bodily injury.
    The other major concern is that the bill allows for the broad sharing of
    sensitive information with intelligence agencies, including the CIA, the
    NSA, the INS and the Secret Service. It would permit sharing information
    gathered through wiretaps and confidential grand jury information without
    any safeguards regarding the future use or dissemination of such
    information.
    "In sum," the ACLU's Murphy said, "the proposed compromise legislation does
    include some improvements from the Administration's original legislation.
    But we are still deeply concerned that the compromise measure continues to
    weaken essential checks and balances on the authority of federal law
    enforcement in a manner that is unwarranted."
    
    
    
    
    
    
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