FC: ACLU: Senate anti-terror bill still awful, worse than House version

From: Declan McCullagh (declanat_private)
Date: Sun Oct 07 2001 - 19:22:43 PDT

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    General background on post-Sep-11 legislation:
    http://www.wartimeliberty.com/search.pl?topic=legislation
    
    And:
    
    "ACLU on new anti-terror bill with expiration date: Oppose it!"
    http://www.politechbot.com/p-02599.html
    
    ********
    
    From: BSACLUat_private
    Date: Sat, 6 Oct 2001 09:33:12 EDT
    Subject: Better version
    To: declanat_private
    
    Declan,
    
    We are still having net connectivity problems at the ACLU, which is only 10 
    blocks from ground zero. The copy of our analysis of the newest version of 
    the Senate anti-terrorism bill may not have been propertly formatted.
    
    Here is a better version.
    
    Barry Steinhardt
    
    http://www.aclu.org/safeandfree/
    
    
    ACLU Calls New Senate Terrorism Bill Significantly Worse;
    Says Long-Term Impact on Freedom Cannot Be Justified
    FOR IMMEDIATE RELEASE
    Friday, October 5, 2001
    WASHINGTON -- The American Civil Liberties Union today urged the Senate to 
    reject the newest version of proposed anti-terrorism legislation, saying 
    that it poses significantly more danger to civil liberties than the measure 
    adopted earlier this week by the House Judiciary Committee.
    "The new Senate legislation goes far beyond any powers conceivably 
    necessary to fight terrorism in the United States," said Laura W. Murphy, 
    Director of the ACLU's Washington National Office. "The long-term impact on 
    basic freedoms in this legislation cannot be justified."
    "For immigrants," added Gregory T. Nojeim, Associate Director of the ACLU's 
    Washington Office, "this bill is a dramatic setback. It is unconscionable 
    to detain immigrants who prove in a court of law that they are not 
    terrorists and who win their deportation cases."
    Among the bill's most troubling provisions, the ACLU said, are measures 
    that would:
    Allow for indefinite detention of non-citizens, even if they have 
    successfully challenged a government effort to deport them.
    Minimize judicial supervision of federal telephone and Internet 
    surveillance by law enforcement authorities.
    Expand the ability of the government to conduct secret searches.
    Give the Attorney General and the Secretary of State the power to designate 
    domestic groups as terrorist organizations and block any non-citizen who 
    belongs to them from entering the country. Under this provision, paying 
    membership dues to such an organization would become a deportable offense.
    Grant the FBI broad access to sensitive business records about individuals 
    without having to show evidence of a crime.
    Lead to large-scale investigations of American citizens for "intelligence" 
    purposes.
    The new legislation, which has been significantly rewritten in the last 24 
    hours, was given to Senate offices today. Senate leaders said they are 
    planning to by-pass Judiciary Committee hearings and mark-up; a floor vote 
    in the Senate could happen as early as next Wednesday.
    "In its rush to legislate, the Senate is abandoning its responsibility to 
    be deliberative and careful," Murphy said. "We urge Senators to insure that 
    any legislation maximizes our security while minimizing the impact on our 
    civil liberties."
    Following are highlights of the civil liberties implications of the 
    compromise legislation introduced by Majority Leader Tom Daschle, D-SD, 
    Minority Leader Trent Lott, R-MS, Judiciary Committee Chairman Patrick 
    Leahy, D-VT, and ranking minority member Orrin Hatch, R-UT. Senators Bob 
    Graham, D-FL, and Paul Sarbanes, D-MD, are also original co-sponsors.
    Immigration
    The ACLU said that the new 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 non-citizens -- including those who 
    win their deportation cases -- based merely on the Attorney General's 
    certification that he has "reasonable grounds to believe" the non-citizen 
    endangers national security. In addition, non-citizens ordered removed to 
    countries that would not accept them could also be indefinitely detained.
    "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. 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.
    Wiretapping and Intelligence Surveillance
    On the question of wiretapping and intelligence surveillance, the ACLU said 
    that the wiretapping proposals in the Senate bill 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 Senate 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 were a criminal investigation. Intelligence surveillance merely 
    needs to be only 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.
    4. The bill would also grant the FBI broad access in "intelligence" 
    investigations to records about a person maintained by a business. The FBI 
    would need only certify to a court that it is conducting an intelligence 
    investigation and that the records it seeks may be relevant. With this new 
    power, the FBI could force a business to turn over a person's educational, 
    medical, financial, mental health and travel records based on a very low 
    standard of proof and without meaningful judicial oversight.
    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 (FISA). 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 most serious civil liberties concerns in the Senate bill is that 
    it would dramatically expand the use of secret searches. Normally, a person 
    is notified when law enforcement conducts a search. In some cases regarding 
    searches for electronic information, law enforcement authorities can get 
    court permission to delay notification of a search. This bill would extend 
    the authority of the government to request "secret searches" to every 
    criminal case. This vast expansion of power goes far beyond anything 
    necessary to conduct terrorism investigations.
    The bill would also allow for the broad sharing of sensitive information in 
    criminal cases with intelligence agencies, including the CIA, the NSA, the 
    INS and the Secret Service. It would permit sensitive grand jury and 
    wiretap information without judicial review or any safeguards regarding the 
    future use or dissemination of such information.
    The bill also creates a new crime of "domestic terrorism." The new offense 
    would transform protestors into terrorists if they engage in conduct that 
    "involves acts dangerous to human life." Members of Operation Rescue, the 
    Environmental Liberation Front and Greenpeace, for example, have all 
    engaged in activities that could subject them to prosecution as terrorists. 
    Then, under this legislation, the dominos would fall. Those who provide 
    lodging or other assistance to these "domestic terrorists" could have their 
    homes wiretapped and could be prosecuted.
    
    
    
    
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