Letter to Congress Regarding Conference Report on S. 2845, the "Intelligence Reform and Terrorism Prevention Act of 2004"

Re: Conference Report on S. 2845, the “Intelligence Reform and Terrorism Prevention Act of 2004”

Dear Member of Congress:

On behalf of the American Civil Liberties Union and its more than 400,000 members, dedicated to preserving civil liberties while protecting the nation, we write to explain our opposition to the conference report on major legislation implementing the recommendations of the National 9-11 Commission.

The rush to meet the artificial deadline of the end of this year has, unfortunately, produced legislation with significant flaws. While the ACLU commends Senators Collins and Lieberman, and Representatives Hoekstra and Harman, for their tireless work and sincere commitment to reforming the nation’s intelligence community, the conference report would, if passed, do significant and unnecessary damage to our nation’s civil liberties.

The conference report:

Centralizes the intelligence community’s surveillance powers without sufficient safeguards. The legislation creates a “national intelligence director” with substantial budget and personnel authorities throughout the agencies of the government that spy on both Americans and foreign nationals. While the director’s office contains officers charged with safeguarding privacy and civil liberties, there are few substantive limits on the surveillance powers, including covert operations, the intelligence community could unleash against Americans who are deemed potential threats to national security. Existing law provides some limits on domestic spying by intelligence officials. These limits must be strengthened because the creation of a national intelligence director gives intelligence officials, rather than law enforcement officials, more clout in domestic surveillance operations.

Weakens the civil liberties board. The 9/11 Commission understood that many of its recommendations could result in some cost to the nation’s freedoms and civil liberties and recommended a strong civil liberties board. Unfortunately, the independence of the Privacy and Civil Liberties Oversight Board will be harmed because its members are appointed by the President and serve at his pleasure and because the board is located in the Executive Office of the President. The conferees also seriously weakened the civil liberties board, at the request of the administration, by failing to provide it with its own subpoena powers. The civil liberties board needs strong powers to engage in effective oversight. The power to subpoena records and witnesses from outside the government is particularly crucial because critical intelligence functions – including surveillance, interrogation, and translation – are being performed today by private contractors.

Further expands wiretapping, law enforcement, and deportation laws. While we are pleased that many of the most extreme proposals to expand law enforcement and deportation powers were rejected by the conference committee, the conference report still includes extraneous provisions that do not belong in a bill overhauling the intelligence community.

First, the bill still includes an expansion of federal wiretapping power that would eliminate (for non-citizens) the fundamental requirement for foreign intelligence wiretapping – that the target be connected to a foreign power. This expansion flies in the face of the 9-11 Commission’s own report, which found a misunderstanding of existing surveillance law, not a lack of power, was at the heart of pre-9/11 missed opportunities.

Second, the bill also includes automatic pretrial detention for terrorism suspects, even when the government cannot show, as current law requires, that a suspect is a danger or a flight risk. The Justice Department abused its detention powers after 9-11 and has a record of making accusations of involvement in terrorism in pretrial hearings without evidence to support those accusations.

Finally, the bill also includes an amendment to the “material support” statute that would further criminalize association with groups the government labels as foreign terrorist organizations. For the first time, mere membership in such an organization is made a federal crime. While the bill also includes an explicit requirement that a defendant must have some knowledge of an organization’s status as a designated foreign terrorist organization or involvement in terrorist activities, this intent requirement does not cure the constitutional flaws of the statute. It is still a crime to provide otherwise lawful humanitarian assistance to a designated organization and “terrorism” is still defined far too broadly.

Authorizes sharing of personal information among public and private databases, without substantive limits or adequate technological safeguards. The legislation mandates the creation of an intelligence community “Information Sharing Environment” (ISE) that has the potential to become a tool for unchecked data surveillance. While the conference report does require that guidelines for information sharing take into account privacy and civil liberties, and that those guidelines be reviewed by the civil liberties board, it weakened the Senate bill’s mandate for strong privacy-enhancing technologies. More significantly, the legislation contains no substantive standard by which data surveillance is limited. Instead, it references “applicable legal standards relating to privacy and civil liberties.” Technological advances have resulted in the sharing of much more deeply personal information in third-party databases, for which “applicable legal standards” often provide little or no protection. Congress barred funding for the Pentagon’s “Total Information Awareness” (TIA) program for precisely this reason.

Fails to curb excessive secrecy that harms national security. The 9-11 Commission found that excessive secrecy impedes information sharing and frustrates public and Congressional oversight. Unfortunately, the conference report does nothing to reform overclassification or excessive secrecy. Not only does the conference report fail to address these issues in general, it omits a key recommendation of the 9-11 Commission — to make public the top-line number for the intelligence community’s budget.

Creates what amounts to a “national ID card” through a federal mandate for drivers’ license standards. While we are pleased the conferees did not agree to demands that states be forced to link their drivers’ licenses to immigration status, the resulting language nevertheless goes a long way towards creating a national ID card. While the 9/11 Commission did not endorse a national identification card per se, its recommendations for federal standards for drivers licenses amount to a back-door way of accomplishing the same objective. Once federalized by this legislation, drivers licenses could 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, and that the government could use to track Americans through radio frequency chips or other technologies embedded in a license.

Conclusion. We sincerely commend the excellent work of the conference committee in resisting substantial political pressure to add many more extreme provisions. These provisions would have greatly expanded the federal death penalty, penalized asylum-seekers who cannot produce documents from the governments they are fleeing, and severely restricted federal court review for long-term, lawful permanent residents facing deportation for past crimes.

Many members of the conference committee worked very hard, under substantial pressure, to address the issues outlined above in a manner that would have been more faithful to the nation’s needs to reform the intelligence community while protecting civil liberties. While we thank them for their efforts, Congress should not pass a flawed bill simply because the bill could have been worse.

Thank you for your consideration of our views.

Sincerely,

Laura W. Murphy
Director ACLU Washington Legislative Office

Timothy H. Edgar
Legislative Counsel