ACLU Letter Urging Senators to Postpone Consideration of the Collins-Lieberman bill S. 2845, the National Intelligence Reform Act, until after the Presidential Election

Re: S. 2845, the National Intelligence Reform Act

Dear Senator:

On behalf of the American Civil Liberties Union and its more than 400,000 members, dedicated to the Bill of Rights and our system of checks and balances, we write concerning S. 2845, the National Intelligence Reform Act. We urge that consideration of S. 2845 be postponed until after the election.

While we commend Senators Collins and Lieberman for their bipartisan efforts to respond to the 9-11 Commission’s recommendations, S. 2845 needs significant further improvements. In its current form, such a sweeping reorganization of the intelligence community, creating a National Intelligence Director with powers over both foreign and domestic surveillance, could pose serious potential harm to civil liberties.

Despite some progress that has improved S. 2845 from the original plan of the 9-11 Commission, it is becoming clear that the task of making fundamental changes to the intelligence community in the heat of an election year will almost certainly produce flawed legislation that could undermine fundamental civil liberties.

Furthermore, the House leadership’s decision to include extraneous provisions expanding the Patriot Act and seriously undermining the basic rights of asylum-seekers and other non-citizens to fair treatment and access to the courts poses a real danger to fundamental rights. We strongly urge you to reject these provisions of H.R. 10, and to vote against an amendment by Senator Kyl to add similar provisions to S. 2845.

We urge you to oppose amendments that could harm civil liberties by strengthening the power of intelligence officers over domestic surveillance, add unrelated provisions that would expand the Patriot Act or reduce immigrants’ rights, and impose drivers license standards that would lead, in effect, to a national identification card.

We urge you to support the an amendment, supported by Senators Wyden and Lott, to combat excessive government secrecy. We strongly urge support of an amendment by Senator Wyden to place sensible safeguards on data mining of personal information, which will be absolutely essential as a result of the bill’s creation of a information-sharing network that could pry into the private lives of every American.

Finally, we urge you to support an amendment, to be offered by Senators Sarbanes and Bingaman, to strengthen the Privacy and Civil Liberties Oversight Board, an essential element of S. 2845 and one that implements an important recommendation of the 9-11 Commission.

Intelligence Reform and Civil Liberties: Progress, But Much More To Be Done

Senators Collins and Lieberman have worked in a bipartisan fashion to craft legislation that creates a National Intelligence Director, a National Counter Terrorism Center (NCTC), an information-sharing system, and a civil liberties protection board. The Collins-Lieberman plan for intelligence reform represents a significant improvement over the original plan proposed by the 9-11 Commission. The Collins-Lieberman bill does not place the Director and the Center in the White House, which could have resulted in serious abuses of intelligence powers for political ends. The bill also does not put the National Intelligence Director directly in charge of FBI and Homeland Security intelligence officials in a reporting relationship that was deeply problematic. The bill includes internal watchdogs, including an inspector general and civil liberties and privacy officers, in the intelligence agencies. The Collins-Lieberman bill also includes a civil liberties protection board to serve as a government-wide watchdog agency.

Despite these significant improvements which the ACLU strongly supports, the Collins-Lieberman bill as it stands still poses substantial risks to civil liberties. The bill leaves important questions about the powers of the National Intelligence Director and the NCTC over intelligence operations unanswered. To what extent will these officials have control of the targets of domestic surveillance, and the use of intelligence information? To what extent could the NID and NCTC direct officials of the intelligence agencies, including the CIA and military intelligence, to engage in domestic surveillance which is currently allowed under Executive Order 12,333?

The 9-11 Commission rejected calls for a domestic intelligence agency because it feared that covert operations and intelligence gathering outside the legal system would inevitably lead to civil liberties abuses and a backlash that would undermine trust in government. The bill should be much more specific in describing the role and duties of intelligence officers, and should cabin their involvement in domestic surveillance and law enforcement far more carefully.

We vigorously oppose any amendment to increase the powers of the NID over domestic surveillance further, such as the amendment by Senator Specter, that would actually put the NID in directly in charge of FBI and Homeland Security intelligence operations.

We support efforts by Senators Specter and Lautenberg to give the NID a fixed term that does not coincide with that of the President, in order to increase the independence of the NID and ensure the NID does not serve the partisan agenda of the party in control of the White House.

Information-Sharing Network Could Make Suspects of Ordinary Americans

The proposed Information Sharing Network represents a radical departure from existing practices. The network would not only include information from government files that were collected for other purposes, but would also include personal information collected by the private sector, which is not bound by the Privacy Act and which increasingly uses commercial data mining software to assemble intimate details on the private lives of Americans for marketing purposes.

While there are both advantages and disadvantages to the network, the disadvantages will out weigh the benefits if privacy and civil liberties problems are not addressed during the planning and implementation of the network. If a number of additional safeguards are not incorporated into the implementation of the network, it has the potential to become the successor to the Total Information Awareness (TIA) program, an ill-fated Pentagon spy program that the Senate agreed overwhelmingly to terminate.

The first and most obvious problem is that flawed and inaccurate information could be contained in the network forever, available to any intelligence or law enforcement officer. This is bound to lead to hardship for many Americans. In addition, false information is likely to result in the creation of new files on individuals. The network would amount to a virtual dossier of intelligence information about Americans that is not based on criminal conduct. The bill could have the effect of making some (if not all) innocent Americans suspects without probable cause and would make that information widely available within the government and without adequate safeguards. There is little question that as this network becomes more sophisticated it will incorporate all types of commercial data surveillance techniques and eventually form detailed descriptions of suspected individuals.

The information-sharing network proposed in the bill is deeply flawed and requires significant amendment to address privacy and civil liberties issues.

Drivers Licenses and National ID

While the 9/11 Commission did not endorse a national identification card per se, its recommendations for federal standards for drivers licenses could amount to a back-door way of accomplishing the same objective. Even during periods of national threat, most notably the Cold War and World War II, the country has never thought it necessary to require citizens to carry “”papers”” with them at all times. If Congress did so now, it would endanger both security and civil liberties.

Once federalized, drivers licenses would be demanded for all manner of personal transactions that do not now require one. Moreover, federalized licenses would be the key that accesses personal information about the holder that would be inevitably linked to the license. Today, that information would include obvious identifiers such as Social Security Number and address. But tomorrow, it would include less obvious identifiers, and not just fingerprints and retina scans. Many businesses – from landlords to retailers – would themselves, or through the government, seek to tie personal information to the federalized drivers license, and they would not allow routine transactions unless a person produced their federalized drivers license.

Moreover, the same people who produce fraudulent state identification documents today would produce fraudulent federalized identification documents tomorrow. The fraudulent federalized documents would be used not only by those seeking to commit fraud, but by those intending to do much more serious harm.

The Collins-Lieberman bill wisely chose not to tackle such a difficult issue at the same time as Congress deals with the complex issue of intelligence reform. We oppose an amendment, which may be offered by Senators Durbin and McCain, that would include such a standardization in this bill, either separately or together with other 9/11 Commission recommendations the Collins-Lieberman bill does not address. A much better approach would be for Congress to fund state efforts to make drivers licenses more secure. We urge the Senate to reject any amendment on standardized federal drivers licenses.

Watchlist Amendment Falls Short in Protecting Innocent Passengers

As a result of “”no fly lists,”” innocent people have found themselves unable to fly on airplanes because they have the same name as a suspected terrorist or because they have been wrongly placed on a watchlist. For many, getting on a plane means repeated delays and the stigma of being singled out as a security threat in front of their family, their fellow passengers, and the flight crew. These passengers have no idea why they have been placed on the “”no-fly list”” and have no way to challenge this designation. While Senator McCain’s amendment on watch lists attempts to address part of this problem, it falls short of solving the problem. First, part (c) mandates the creation of procedures for assuring that information on the terrorist watch lists and no-fly lists are accurate. While this is a welcome step, it misses the central point, namely that fair criteria should determine how individuals get on the watch lists and no-fly lists in the first place.

There are two problems with watch lists – individuals misidentified as people on watch lists and individuals wrongly placed on watch lists. The McCain amendment, which was adopted on September 28, goes to the first problem but not the second. Secondly, the amendment does not have a standard for the information relied upon which ultimately results in an individual being added to the watch list. While there is a procedure to correct erroneous information, this procedure falls short because there is no process for passengers to challenge their designation on the watch list. Lastly, there is no independent review of the adverse impact of the administration of the watch lists on privacy, due process, and other civil liberties.

Oppose Expansion of Patriot Act, Attacks on Immigrants’ Rights

We are alarmed that some members of Congress may use the 9-11 Commission legislation to expand Patriot Act powers and to attack the rights of immigrants to have their day in court, although this was not recommended by the 9-11 Commission.

Senator Kyl has filed his bill, S. 2679, the so-called “”Tools to Fight Terrorism Act,”” as an amendment to the Collins-Lieberman bill. We vigorously oppose S. 2679, which is a far-reaching bill that has been the subject of only one Senate subcommittee hearing. It includes, among other things, an expansion of federal wiretapping power that would eliminate (for non-citizens) the fundamental requirement for foreign intelligence wiretapping – that the target be connect to a foreign power. It also includes a host of other provisions that expand Patriot Act powers that are far-reaching and would violate basic rights, including removing the requirement that FBI records requests in terrorism cases be approved by a judge of the Foreign Intelligence Surveillance Court or by a federal grand jury, expansions of the death penalty, automatic pretrial detention for terrorism suspects, and a number of other powers that go well beyond the Patriot Act.[1]

Another bill that may offered, in whole or in part, to the Collins-Lieberman bill is S. 2443, the so-called “”Fairness in Immigration Litigation Act,”” whose major provisions have been included in the House bill, H.R. 10. There have been no hearings on S. 2443, an immigration court-stripping measure. S. 2443 would make fundamental changes to the writ of habeas corpus, shutting the courthouse door to asylum-seekers, torture victims and others with legitimate appeals. S. 2443 would essentially suspend the writ of habeas corpus in many immigration cases and substitute a deeply flawed and inadequate “”petition for review”” in the federal courts of appeals under an extremely narrow standard of review. It should be rejected.[2]

Senators should oppose any amendment to add provisions of these divisive and seriously flawed bills, in whole or in part, to the Collins-Lieberman bill. These proposals were certainly not recommended by the 9-11 Commission and simply have no place in this debate.

Include Protections for Excessive Secrecy

While the Senate should reject unrelated provisions, amendments to strengthen accountability for the intelligence community are at the heart of the 9-11 Commission’s calls for reform. The Commission specifically criticized excessive classification of government documents and urged that substantial reforms to the classification system be made to ensure information is made available to those who need it. Without such reforms, changes in the organizational structure of the intelligence community will not be effective.

The ACLU strongly supports the Wyden-Lott amendment to add their bill, S. 2672, that combats excessive government secrecy by creating a classification review board to the Collins-Lieberman bill. Sunlight not only can reveal government waste or serious abuses of government power, it can also lead to catching problems before they result in catastrophic intelligence failures. We strongly urge the Senate to accept the Wyden-Lott amendment to establish a three-person board to review and recommend changes to the classification process and to referee disputes about the declassification of documents.

Conclusion

While we applaud the bipartisan spirit in which Senators Collins and Lieberman have approached the Herculean task of reorganizing the intelligence community to meet the threat of terrorism, pushing through this legislation in a highly charged partisan atmosphere could do lasting damage to civil liberties. We urge that the legislation be deferred until after the election, so that Senators can consider these proposals in a thoughtful and deliberative environment.

Sincerely,

Laura W. Murphy
Director, Washington Legislative Office

Timothy H. Edgar
Legislative Counsel

[1] For more details on S. 2679, please see ACLU’s testimony for the record of that hearing, available at: /node/24843

[2] An ACLU analysis of the parts of S. 2443 that are included in H.R. 10 is available here: /node/20813