ACLU Testimony of Timothy Edgar, Legislative Counsel, at a Hearing on "Tools to Fight Terrorism: Subpoena Authority and Pretrial Detention of Terrorists before the Senate Judiciary Subcommittee on Technology, Terrorism and Homeland Security

ACLU Testimony of Timothy Edgar, Legislative Counsel, at a Hearing on “Tools to Fight Terrorism: Subpoena Authority and Pretrial Detention of Terrorists before the Senate Judiciary Subcommittee on Technology, Terrorism and Homeland Security

Chairman Kyl, Ranking Member Feinstein and Members of the Subcommittee:

I am pleased to submit this statement for the record today on behalf of the American Civil Liberties Union and its more than 400,000 members, dedicated to preserving the principles of the Constitution and Bill of Rights, at this hearing on proposals to remove critical checks and balances from the government’s powers to obtain sensitive personal records and to detain accused persons before trial.

Just six weeks after the terrorist attacks in New York and Washington on September 11, 2001, Congress approved the USA PATRIOT Act,[1] which expanded federal law enforcement and intelligence powers at the expense of civil liberties and meaningful judicial oversight.

In January 2003, word leaked from the Department of Justice (DOJ) of a possible successor to the PATRIOT Act, the “”Domestic Security Enhancement Act”” (DSEA), quickly dubbed “”Patriot Act II.”” The advent of a Patriot II draft seemed to indicate Congress might soon be considering a major new expansion of federal power even before DOJ had explained how it is using the powers already granted and before Congress had undertaken any substantial oversight of PATRIOT Act powers.

Continued grassroots controversy about the impact of the PATRIOT Act on civil liberties, reports of Justice Department abuses of immigration detainees by its own Office of Inspector General, and lingering concern among powerful members of Congress have slowed the seemingly inexorable momentum of new federal government powers. House Judiciary Chairman Jim Sensenbrenner (R-WI) has said that a proposal to eliminate the PATRIOT Act’s sunset provision early would only pass “”over my dead body,””[2] and is reportedly “”cool”” to proposals to expand the PATRIOT Act.[3]

As a result, the Department of Justice and other supporters of expanded federal powers have not gone forward with a comprehensive sequel to the PATRIOT Act. Nevertheless, they have continued to press forward with a strategy to satisfy a seemingly insatiable appetite for new and unnecessary powers without appropriate checks and balances. This Patriot II agenda includes separate legislation and attempts to attach pieces of Patriot II to other bills.

On June 5, 2003, Attorney General Ashcroft stated that the PATRIOT Act “”has several weaknesses which terrorists could exploit, undermining our defenses,”” and endorsed three provisions of Patriot II. More recently, on September 10, 2003, President Bush announced in a speech at the FBI that the law contained “”loopholes”” that erected “”unreasonable obstacles”” to law enforcement. The President urged Congress to “”untie the hands of our law enforcement officials”” and pass three provisions of Patriot II, each of which was introduced as a separate bill that day or the day before:

• H.R. 3037, “”The Antiterrorism Tools Enhancement Act of 2003,”” allowing the government to seize records and compel testimony in terrorism cases without prior review by a court or grand jury;
• H.R. 3040 and S. 1606, “”The Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003,”” allowing the government to deny bail without proving danger or flight risk for a laundry list of federal crimes said to be terrorism- related[4] (under current law, pretrial detention is available for all federal crimes, but a presumption of detention only applies to terrorism crimes if they are “”acts of terrorism transcending national boundaries””);
• H.R. 2934 and S. 1604, the “”Terrorist Penalties Enhancement Act of 2003,”” creating a new death penalty (where death results) for “”domestic terrorism”” as defined by the PATRIOT Act – a definition that applies not only to specific crimes of terrorism but also to any violation of federal or state law if it involves a dangerous act and is intended to influence government policy – a definition so broad it could cover some acts of civil disobedience by protest groups.

The first two of these proposals are the subject of today’s hearing.[5]

In arguing for additional legal authorities, Administration officials almost never acknowledge the scope of their existing legal powers. To rectify this gap, this statement explains what the PATRIOT Act and pre-9/11 legal authorities already permit federal agents to do. In fact, DOJ already has broad powers to obtain sensitive records like library and bookstore records, medical records, and other records and detain terrorism suspects without bail.

According to Attorney General Ashcroft, for almost two years, from October 2001 to September 2003, the Justice Department had not even used one PATRIOT Act power – such as the power to get an order from the Foreign Intelligence Surveillance Court for library or other sensitive records without probable cause or individualized suspicion. The Justice Department has now released documents that suggest it requested authorization for such an order in October 2003.[6]

The government has not explained why it had not used the PATRIOT Act records power for almost two years. The most logical explanation is that the power was not needed – that the government could and did obtain the information it sought in its wide-ranging post 9-11 terrorism investigations through its preexisting intelligence and law enforcement powers. Despite this, the Administration argues that Congress should expand this and other PATRIOT Act powers even further.

The powers that are the subject of today’s hearing would weaken basic checks and balances and should be rejected.

Administrative Subpoenas

The Administration is requesting power to issue orders in terrorism for library, medical, or other sensitive records, and to obtain testimony, without individual suspicion and without a judge or grand jury. The proposal would weaken checks and balances and is unnecessary, given the array of existing powers to obtain records in terrorism cases.

Current law: Under current law, the government can obtain documents or other “”tangible things”” in terrorism cases either through its normal criminal investigative powers, or its powers under the Foreign Intelligence Surveillance Act (FISA) or other “”national security”” powers.

The criminal powers include:

• Criminal search warrants. These apply to all documents and require a judge or magistrate to find probable cause that the search will produce evidence of crime.
• Grand jury subpoenas. These do not require probable cause but do require a grand jury to find that the testimony or documents are relevant to an ongoing grand jury investigation of criminal activity, and they can be challenged before a judge.

The FISA and other “”national security”” powers, the use of which are classified, include:

• FISA “”physical search”” orders. These do not require probable cause of crime, but instead require a judge of the Foreign Intelligence Surveillance Court (FISC) to find probable cause that the target of the search is acting for a foreign government or organization (i.e., is an “”agent of a foreign power””).
• FISA document orders, added by section 215 of the PATRIOT Act. These do not require probable cause of anything, but instead mandate that a judge of the FISC or a federal magistrate issue an order to produce documents if the government certifies that they are “”sought for”” an investigation “”to protect against international terrorism or clandestine intelligence activities.”” These orders permit government agents to obtain sensitive information, including library, bookstore, medical, financial, educational, or any other “”tangible things”” simply by making the certification. The statute provides no mechanism for a recipient of such an order to challenge it. A recipient is also prohibited by law from informing the person whose records are seized that he or she is under government surveillance, or from objecting to the order to the press or public.
• National security letters, expanded by section 505 of the PATRIOT Act. These allow the FBI, without a court order, to compel production of certain financial records and telephone and Internet service provider “”subscriber information,”” if the FBI says the records are relevant to a terrorism or intelligence investigation. The government has said it may use such letters to obtain information about patrons who use a library’s public terminals to access the Internet. Like an order under section 215, a recipient of a national security letter is prohibited by law from informing the person whose records are seized that he or she is under government surveillance, or from objecting to the order to the press or public.

The powers added by the PATRIOT Act are particularly troubling. Nevertheless, while the court review provided under section 215 is clearly inadequate, it was a significant improvement over the Administration’s original proposal, which was to give government agents power under FISA to seize records without any court review at all.

Notably, Attorney General Ashcroft said in a speech in September 2003 that the government had not used one of these powers – FISA document orders. Recently, the government released documents showing that, shortly after this speech, the Justice Department sought authorization from the Foreign Intelligence Surveillance Court for such an order. The government has not provided any useful information about the use of the government’s other powers, such as “”national security letters,”” to obtain library records or other sensitive records without individual suspicion. The Washington Post reports that “”scores”” of such letters have been issued.[7]

Proposed Change: The proposal would create new “”administrative subpoena”” powers whenever the government seeks documents or testimony in terrorism cases. This would give the government, in effect, a license to seize any documents (including First Amendment protected records like library and bookstore records, medical and genetic information, and membership lists of organizations) and to compel testimony without probable cause of crime, without a connection to a foreign power, and without prior review by a judge or grand jury. In addition, at least as proposed in H.R. 3037, the power would result in an automatic gag order, preventing the recipient of the subpoena from informing anyone of the order, and would permit the government to compel a person to testify, and not just produce documents, also without any prior court review.

While the Administration argues such subpoenas are already available in cases of health care fraud,[8] the proposal actually goes much further. Existing administrative subpoenas only allow for very limited testimony, generally to authenticate the records being sought. By contrast, the Administration proposal permits compelled testimony on any matter at all, setting a frightening precedent. Such subpoenas would allow federal agents to compel Americans to answer questions without a lawyer present, and without even the extremely limited safeguards available to witnesses before a grand jury, such as a verbatim transcript.

The argument for administrative subpoenas also ignores the bargain struck during negotiations over the PATRIOT Act, in which members of Congress agreed to a very broad records power under section 215 while insisting on preserving some (and, in our view, entirely inadequate) court review. Finally, the Administration proposal fails to recognize the sensitive First Amendment interests at stake in national security investigations, which can chill the lawful activities of political and charitable groups, and the history of abuse of government intelligence powers. These First Amendment interests counsel for judicial oversight and other checks which may not be implicated in health care fraud investigations.

Pretrial Detention

The second proposal is to expand pretrial detention and lifetime supervision for laundry list of crimes said to be terrorism-related beyond what is already provided in USA PATRIOT Act. This proposal also weakens important checks and balances and should be rejected.

Current law: Current law provides for pretrial detention for anyone charged with a federal crime if the government can show to a judge that the accused is a flight risk or danger to the community. 18 U.S.C. § 3142(e). For some serious crimes, including “”acts of terrorism transcending national boundaries,”” (defined at 18 U.S.C. § 2332b) there already is a presumption that shifts the burden of proof on flight risk and dangerousness to the accused. If the accused is not charged with acts that meet the definition (for example, because the crime involved only domestic criminal activity), the court may still deny bail, but the government would be required to show with evidence that the defendant is a danger or a flight risk.

Proposed Change: This proposal would require judges to deny bail to many more accused people, even if the government has not shown they are dangerous or likely to flee. A person who is presumed innocent and has not been found guilty of any crime could be held for months or years without the government having made any showing that he or she is dangerous or a flight risk. The proposal does this by making a laundry list of crimes said to be terrorism-related presumptive “”no bail”” offenses even if the crimes do not involve “”acts of terrorism transcending national boundaries.””

Shifting the burden of proof for pretrial detention in many more cases – not involving international terrorism but said to be terrorism related – could result in serious injustices. After September 11, 2001, the government engaged in a widespread campaign of detention that involved immigration charges, criminal charges, and material witness warrants. The Inspector General of the Department of Justice found that many detainees were inappropriately labeled as terrorism suspects and left to languish in jail for months. These findings, while they involved immigration detainees and not criminal detainees, show that DOJ is quick to label people as connected to terrorism and slow to clear them.

Conclusion

The legislative proposals that embody provisions of Patriot Act II – both individually and taken as a whole – represent Administration defiance of the growing opposition to provisions of the PATRIOT Act and other government actions since September 11, 2001 that go beyond what is necessary to fight terrorism and infringe on basic civil liberties. To date, 332 communities in 41 states, representing over 51.9 million people – as well as four state legislatures – have passed resolutions that object to some provisions of the PATRIOT Act and other government actions that infringe on civil liberties. The House of Representatives voted overwhelming, 309 to 118, to prohibit funds for PATRIOT Act “”sneak and peek”” searches, and an array of bipartisan bills have been introduced in both Houses of Congress to repeal or scale back provisions of the PATRIOT Act.

Broad administrative subpoenas for terrorism and expansions of presumptive pretrial detention are unwise and unwarranted. The federal government already has ample power to obtain documents in terrorism cases and to detain suspected terrorists before trial. Congress should not move a major part of the Administration’s agenda to expand the USA PATRIOT Act without far more detailed review of the effect of the Act, and other post-9/11 policies, on civil liberties.

These proposals to remove important checks and balances on government surveillance and detention powers will be seen as another federal infringement on civil liberties that will not make America safer. It will, as a result, increase mistrust, dividing many Americans from their government. It should be rejected.

[1] Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).

[2] Craig Gilbert, Sensenbrenner Says He’ll Enforce Sunset of Police Powers, Milwaukee Journal-Sentinel, Apr. 17, 2003.

[3] Audrey Hudson, “”Patriot II”” Bid Garners Little Favor on Hill, Washington Times, Sept. 12, 2003.

[4] This list of crimes, which are called “”Federal crimes of terrorism,”” is contained at 18 U.S.C. § 2332b(g)(5).

[5] The death penalty expansion bill has been the subject of action in the House Judiciary Committee. A copy of my statement for the ACLU in opposition to that proposal is available at: /node/21293

[6] Amy Goldstein, Patriot Act Provision Invoked, Memo Says – FBI Request Came Weeks After Ashcroft Denied Using Controversial Part of Law, Washington Post, June 18, 2004, at A11.

[7] See Dan Eggen, Patriot Monitoring Claims Dismissed: Government Has Not Tracked Bookstore or Library Activity, Ashcroft Says, Washington Post, Sept. 19, 2003, at p. A2.

[8] See 18 U.S.C. § 3486.