ACLU Written Statement Submitted by Timothy H. Edgar, Legislative Counsel, at a Hearing on S. 2679, the "Tools to Fight Terrorism Act of 2004" before the Subcommittee on Technology, Terrorism and Homeland Security of the Senate Judiciary Committee

ACLU Written Statement Submitted by Timothy H. Edgar, Legislative Counsel, at a Hearing on S. 2679, the “Tools to Fight Terrorism Act of 2004” before the Subcommittee on Technology, Terrorism and Homeland Security of the Senate Judiciary Committee

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

I am pleased to submit this statement for the record on behalf of the American Civil Liberties Union (ACLU) and its more than 400,000 members, dedicated to preserving the principles of the Constitution and Bill of Rights, at this hearing on S. 2679, which is named the “”Tools to Fight Terrorism Act of 2004.””

S. 2679 contains the largest expansion of federal powers since the USA PATRIOT Act, with the most serious consequences for civil liberties, that have been proposed since the demise of the much-maligned “”Domestic Security Enhancement Act,”” also called “”Patriot Act II.”” While the Domestic Security Enhancement Act provoked a firestorm of criticism and never proceeded beyond the drafting stage, a number of its contentious provisions have been given new life in S. 2679.

S. 2679 will remove critical checks and balances from the government’s powers in a host of areas. If passed, the bill would:

• expand secret eavesdropping and search powers not involving a “”foreign power”” in intelligence cases that are not subject to the stricter safeguards of eavesdropping and searches in criminal cases (sec. 102);
• allow the government to deny bail to anyone it charges with a terrorism crime, even if no other evidence is presented that the accused is a danger or risk of flight (sec. 103);
• weaken Americans’ right to privacy in their library, medical and other personal records by eliminating the already inadequate safeguard in the USA PATRIOT Act of an order by a secret court (sec. 105);
• in criminal cases, compel federal judges to hear, in secret, government requests for permission to delete classified information from documents to be provided to the defense (sec. 108);
• allow for the secret use of secret evidence derived from intelligence intercepts and searches in immigration cases (sec. 109);
• make any crime that meets the USA PATRIOT Act’s overbroad definition of terrorism a death-eligible offense, if death results (sec. 110);
• expand the crime of “”material support of terrorism”” so that association with an organization labeled a terrorist organization by the government is a criminal offense (secs. 114 and 115);
• provide an arsenal of new and unnecessary federal crimes relating to ports, railroads and other transportation systems instead of addressing real and substantial security problems identified by independent experts (titles II, III and IV); and
• expand money laundering law to make innocent users of traditional banking systems, such as hawala, more vulnerable to fines and imprisonment (section 505).

The approach of the legislation suffers from the same flaws as the USA PATRIOT Act, and for the same reason. According to the National Commission on Terrorist Attacks Upon the United States (“”9/11 Commission””), the failures that contributed to the 9/11 attacks were not the result of a lack of legal authority to combat terrorism. Instead, the inability to prevent the attacks resulted from the government’s failure to use existing legal authorities effectively.

In fact, the proposed legislation flies in the face of a specific recommendation of the 9/11 Commission. Far from urging major legislation expanding the PATRIOT Act, the 9/11 Commission called for a “”national debate”” on the wisdom of whether to retain PATRIOT Act powers, with the burden of proof on the government to show they are effective and that appropriate guidelines and safeguards will confine their use. As the 9/11 Commission Report states (at pp. 394-95):

[T]he Patriot Act . . . vested substantial new powers in the investigative agencies of the government. Some of the most controversial provisions of the Patriot Act are to “”sunset”” at the end of 2005. . . . Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy.

Recommendation: The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.

Congress should follow the 9/11 Commission’s recommendation. Thorough hearings must explore the use of existing PATRIOT Act powers, and the government should be required to meet the standard of the 9/11 Commission to show powers are needed.

In arguing for additional legal authorities to address terrorism, 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, to detain terrorism suspects without bail, and to obtain death sentences in terrorism cases.

According to Attorney General Ashcroft, for almost two years, from October 2001 to September 2003, the Justice Department did not even use one PATRIOT Act power -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.[1]

The government has not explained why it did not use 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 in S. 2679 would weaken basic checks and balances and should be rejected.

Eliminating “”Foreign Power”” Standard for Electronic Eavesdropping in National Security Cases (section 102)

Section 102 allows secret foreign intelligence wiretaps of persons who have no connection to a foreign government or terrorist group. The Foreign Intelligence Surveillance Act (FISA) allows secret government surveillance (including physical searches or wiretaps) where criminal “”probable cause”” standards cannot be met but there is probable cause that a target is acting on behalf of a foreign power. By eliminating this foreign power requirement, this so-called “”lone wolf”” provision would violate the Fourth Amendment and allow secret wiretaps of non-U.S. persons outside criminal “”probable cause”” standards and without the government having to show they are connected to a foreign government or terrorist group.

While some have argued the “”lone wolf”” provision is needed to respond to the government’s failure to obtain a FISA warrant in the case of Zacarias Moussaoui, Congress’s own joint 9-11 inquiry specifically rejected that conclusion, finding that government agents “”misunderstood the legal standard for obtaining an order under FISA.”” The Joint Inquiry recommended greater training of FBI and other government lawyers to ensure proper understanding of existing legal authorities, not an amendment to FISA. The Joint Inquiry found that the government could have obtained a warrant to search Moussaoui based on his connection with a Chechen rebel group, which was plainly a “”foreign power”” under FISA, and that the efforts of FBI investigators to connect the Chechen rebels to Al Qaeda was based on a mistaken belief that FISA required a connection to a “”recognized foreign power,”” which is not the case. The Joint Inquiry also faulted the FBI for failing to revisit the idea of seeking an ordinary criminal search warrant.[2] In a February 2003 report on FISA oversight, Senators Leahy, Grassley and Specter noted, with respect to this proposed change, that the Department of Justice was unable to provide even a single case, even in a classified setting, that explained why new wiretapping power was needed. As the report states, “”In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.””

The requirement of a “”foreign power”” connection is the principal rationale that courts have accepted for what amounts to special “”national security”” surveillance that does not meet traditional Fourth Amendment requirements. It is the major protection against a return to the unconstrained “”national security”” surveillance that led to the wiretapping of civil rights and other activists without evidence of criminal activity – including the secret monitoring of John Lennon and other prominent persons. The “”foreign power”” standard is integral to FISA’s constitutionality and forms the basis for the rationale given by the Foreign Intelligence Surveillance Court of Review in its opinion upholding FISA surveillance against a constitutional challenge.[3]

Automatic Pretrial Detention (section 103)

Section 103 expands 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 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.

Section 103 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.

New Administrative Subpoenas (section 105)

Section 105 creates a new “”administrative subpoena”” that permits the FBI, on its own, to issue orders in terrorism cases for library, medical, or other sensitive records (and to obtain testimony from the custodian of such records) 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.

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 an investigation of criminal activity by a grand jury — a panel of ordinary citizens — 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.[4]

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 S. 2679, the power would result in an gag order at the sole discretion of the Attorney General, preventing the recipient of the subpoena from informing anyone of the order.

The Administration relies on report by the Office of Legal Policy of the Department of Justice stating that there are 335 existing administrative subpoenas. [5] However, a close study of that report shows the vast majority of these subpoenas involve civil matters where the grand jury is unavailable. In these cases, Congress has often granted administrative subpoena authority to an administrative agency that regulates certain industries or groups to monitor compliance with the regulations that govern those industries or groups.

In fact, as the report shows, there are only three – not over three hundred – existing criminal administrative subpoenas.[6] The use of such subpoenas in criminal investigations, normally the province of the grand jury, is far less established than there use for regulatory purposes. Some federal courts have clearly been troubled by the use of such subpoenas by criminal investigators.

In the distinct, but analogous context of administrative searches, the Supreme Court had strongly cautioned against allowing regulatory powers to be used for criminal investigations, saying such an approach must be met with “”stern resistance””:

“”The deliberate use by the Government of an administrative warrant for the purpose of gathering evidence in a criminal case must meet stern resistance by the courts. The preliminary stages of a criminal prosecution must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States.””[7]

The argument for administrative subpoenas 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 and others for which administrative subpoenas are now used.

Limiting Judicial Discretion over Secret Evidence in Criminal Cases (section 108)

Section 108 limits judicial discretion over use of secret evidence in criminal cases, strengthening further the hand of prosecutors to delete information that would otherwise be provided to the defense. The Classified Information Procedures Act (CIPA) gives federal judges the option, in criminal cases, of permitting the government to substitute a summary of classified information rather than disclose that information in open court. The use of such a summary is an extremely unusual, and carefully calibrated, procedure designed to satisfy the government’s national security concerns about disclosing raw intelligence information in court while satisfying the Constitution’s demand that the accused be allowed to confront the prosecution’s evidence in a criminal case.

Section 108 would upset this delicate balance by tying the judge’s hands. Section 108 requires the judge to consider the prosecution’s request for permission to use a summary of evidence in camera and ex parte, that is in secret and without the benefit of hearing from the other side. Consider the example of a case involving an exporter of video games, accused of violating regulations regarding the export of “”dual use”” technologies, in which the government wishes to use classified information. Under current law, the judge would have the discretion whether to hear a government request to use the classified information secretly based on the circumstances of the case. Under the bill, however, the judge would have no choice but to hear the government’s request in secret.

Allowing the Secret Use of Secret Evidence in Immigration Cases (section 109)

Section 109 allows the use of secret FISA-derived evidence in immigration (and possibly other) cases without notice or an opportunity to suppress illegally-acquired evidence. FISA contains important procedural safeguards for the use of secret intelligence surveillance information acquired by the FBI. These include the requirement that the government must give notice before using such information in court (50 U.S.C. §§ 1806(c), 1825(d), 1845(c)), that allows the person against whom evidence is to be used to file a motion to suppress on the basis that the evidence was acquired illegally (50 U.S.C. §§ 1806(e), 1825(f), 1845(e)), and that requires an in camera, ex parte review of the surveillance application and other materials by a federal judge where requested by the Attorney General to safeguard classified information (50 U.S.C. §§ 1806(f), 1825(g), 1845(f)). The bill would exempt civil immigration proceedings (and possibly other civil proceedings) from these important judicial safeguards. In so doing, the bill would allow secret use of secret information – which the government says may legally be withheld from the accused in immigration cases.

Current law already places those who face accusations involving secret evidence in immigration cases, and other civil cases, in the untenable position of attempting to refute charges they have never seen. Rumor, unsubstantiated intelligence, and other unreliable information can be used to send an asylum-seeker back to face persecution, torture, or even death. If this provision becomes law, it will become easier for the government to use one type of secret evidence – evidence derived from secret intelligence wiretaps – without even disclosing that is using such evidence at all. The accused will not only face secret accusations, but will not even know enough to challenge the use of such information.

Drastic Expansion of Death Penalty Linked to Overbroad “”Terrorism”” Definition (section 110)

Section 110’s expansion of the federal death penalty would be drastic. In addition to creating twenty-three separate new death penalties in one stroke, section 110 also creates an unprecedented “”catch-all”” death penalty for any federal crime, or any attempt or conspiracy to commit such a crime, that meets the PATRIOT Act’s overbroad definition of terrorism.

First, the bill makes all of the forty-three “”Federal crimes of terrorism”” listed at 18 U.S.C. § 2332b(g)(5) death-eligible offenses; currently, twenty of these crimes are potentially capital offenses. The attached chart shows lays out current penalties for all of these crimes, showing which federal crimes would be made death-eligible by this provision of the bill.

Congress should not simply adopt, without examination, the list of “”Federal crimes of terrorism”” as a proxy for crimes that are serious enough to warrant the death penalty. In listing “”Federal crimes of terrorism,”” Congress did not choose only the most serious terrorism offenses for which it considered the death penalty to be an appropriate punishment, but also included other crimes that Congress created for the goal of preventing and deterring terrorism, including terrorism financing, material support, and computer-related offenses. Some of these crimes have been defined very broadly to enable the government to prosecute persons whose actions may have some relationship to terrorism but whose involvement is more peripheral than those who commit bombings, hijackings, murders or other terrorist acts that already carry the death penalty.

For example, one crime that currently does not carry the death penalty is the offense of providing “”material support”” to a designated foreign terrorist organization. This offense was created in 1996 with a maximum sentence of ten years in prison. The USA PATRIOT Act increased the maximum sentence to fifteen years in prison, with a possibility of a life sentence if death results.

There remains substantial controversy about the breadth of the “”material support”” offense because a conviction requires only that the government show the individual “”knowingly”” gave assistance to an organization designated as a terrorist organization, even if the assistance was only for the organization’s lawful activities. The government argues that a defendant may be convicted even if he did not know of the designation, believed the assistance would support only charitable activities, and even if the assistance in fact only benefited charitable activities.

One federal appeals court has now ruled the material support statute, as amended by the USA PATRIOT Act, must be construed to require knowledge of the designation or of the organization’s unlawful activities, and that its prohibitions on providing “”training”” and “”personnel”” are void for vagueness. Adding a death sentence to such a broad statute will only contribute to its constitutional flaws. While the bill would only permit the death penalty for material support if death results, a prosecutor could be expected to argue that any financial or other contribution to a designated foreign terrorist organization – even for humanitarian activities – is fungible and therefore assisted the organization in committing terrorist acts that resulted in death.

Second, the bill adds a sweeping “”catch-all”” death penalty that makes a federal felony a potential capital offense if it meets the broad definitions of “”international terrorism”” or “”domestic terrorism”” contained at 18 U.S.C. § 2331 and death results. The number of new federal death penalties created by this provision is limited only by the ever-expanding number of criminal offenses.

This “”catch-all”” death penalty provision would not only dramatically increase the number of federal capital offenses, but would seriously exacerbate the already considerable chilling effect of the USA PATRIOT Act’s “”domestic terrorism”” definition on political protest groups that use tactics of civil disobedience. This provision would also exacerbate the already serious civil liberties problems of the definition of international terrorism and of the similar definition of domestic terrorism enacted by the USA PATRIOT Act.

The USA PATRIOT Act, at section 802, provides that any actions, occurring primarily within the United States, are “”domestic terrorism”” if they (1) “”involve”” a violation of state or federal criminal law, (2) “”appear to be intended”” to influence government policy or a civilian population by “”intimidation or coercion”” and (3) “”involve acts dangerous to human