Interested Persons Memo on President Bush's Endorsement of Expanded Law Enforcement Powers, Announced today at the FBI Quantico Facility.

To: Interested Persons
From: Timothy H. Edgar, ACLU Washington Legislative Office
Date: Wednesday, September 10, 2003
Re: President Bush’s Endorsement of Expanded Law Enforcement Powers, Announced at the FBI Quantico Facility.

The three powers being endorsed by President Bush today at an event at the FBI’s facilities in Quantico, Virginia, mirror similar provisions of the draft Domestic Security Enhancement Act (DSEA) that was circulated earlier this year. According to Reuters, President Bush seeks to:

— Deny bail for terrorism suspects. This would relieve the government of the need to convince a judge that a suspect is dangerous or likely to flee.

— Grant law enforcement authorities the ability to issue “”administrative subpoenas”” in certain terrorism cases, thus bypassing all judicial oversight.

— Expand the federal death penalty for terror-related crimes that result in death.

The ACLU has already addressed these concerns when similar measures were included in the draft DSEA, or PATRIOT Act II, when it surfaced earlier this year. What follows is analysis of the sections of the DSEA that correlate with the powers President Bush is promoting today.

Shifting burden of proof to defendant to obtain pretrial release for a laundry list of terrorism crimes (Section 405).

Under this section, the right to bail, protected by the Eighth Amendment, is denied for a host of crimes said to be likely to be committed by terrorists unless the defendant is able to overcome the presumption created by the statute. A major reason for the Constitution’s prohibition against excessive bail is that defendants are presumed innocent until and unless they have been convicted in a court of law. Despite this, under certain circumstances, the Constitution permits pretrial detention. In general, the government must establish, by clear and convincing evidence, that no release conditions can adequately ensure the appearance of the defendant at trial or the safety of the community.[1]

There is no reason to exacerbate the constitutional problems posed by the presumption against pretrial release by expanding that presumption to additional crimes. Before the government imprisons a person who has not been convicted of any crime, the government must bear the burden of establishing that the defendant is a flight risk or a danger to the community. This should not be hard to convince a court with respect to true terrorism defendants; there is no need to apply a pretrial detention presumption to a laundry list of offenses that are simply said to be likely to be committed by terrorists.

Creating new terrorism “”administrative subpoenas”” and providing new penalties for failure to comply with written demands for records that permit the government to obtain information without prior judicial approval (Sections 128 and 129).

Under these sections, government can demand – and enforce its demands through civil and criminal penalties – documents and other information from a business, such as an Internet Service Provider, or any individual without prior court approval. Documents of the most sensitive kind – including library, medical and genetic records – could be seized without individual suspicion or court review. Administrative subpoenas provide the government with the ability to compel production of documents or information without obtaining a court order.

The draft bill authorizes the use of administrative subpoenas and what the DOJ calls “”national security letters”” to obtain information in terrorism investigations. This would remove one check on this power that the PATRIOT Act preserved – the requirement of minimal court review. These sections reduce judicial oversight of terrorism investigations by relegating the role of the judge to considering challenges to orders already issued, rather than ensuring such orders are drawn with due regard for the privacy and other interests of the target. Furthermore, by granting the government power to compel production of records or other information, such as computer files, without first going to court, the draft bill will likely increase the administrative burden imposed on small businesses, particularly high-technology firms, who are facing ever-increasing demands for records in both civil cases and criminal investigations.

Creating 15 new death penalties, including a new death penalty for “”terrorism”” under a definition which could cover acts of protest such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results (Section 411).

The draft bill dramatically expands the death penalty, creating fifteen separate new death penalty crimes by defining a new death sentence that sweeps in the remaining crimes listed as federal crimes of terrorism in 18 U.S.C. § 2332b(g)(5)(B) that do not provide for the death penalty. Among others, these include the provision of material support for the lawful activities of an organization labeled a terrorist organization by the government, 18 U.S.C. § 2339B. While the DOJ labels this provision as providing for the death penalty for terrorist “”murders,”” there is no language in the text that requires any showing by the government of an intent by the defendant to kill; it is sufficient that death results from the defendant’s actions.

Even more troubling, the draft bill is not content to create fifteen new death penalties, but also contains language that sweeps in any violation of state or federal law that is committed under the definition of domestic or international terrorism contained in 18 U.S.C. § 2331. As a result, activities that (1) involve “”acts dangerous to human life,”” (2) are a violation of any state or federal law, and (3) are committed in order to influence government or the population by intimidation or coercion become death-penalty eligible if death results. Arguably, this definition could fit some protest activities, such as those used by Operation Rescue, People for the Ethical Treatment of Animals, or Greenpeace. For example:

• If protesters at Vieques Island, Puerto Rico, a military bombing range unpopular with local residents, cut a fence to trespass on the military’s bombing range, and a bomb killed one of the demonstrators, a prosecutor could charge the survivors with a eligible crime for which the sentence could be death.
• If Greenpeace activists attempted to block an oil tanker entering a port to protest the company’s safety record, and a member of the tanker’s crew drowned attempting to ward off the activists’ boat, the protesters could be charged with a crime for which the sentence could be death.
• If an Operation Rescue anti-abortion demonstration succeeded in blocking a woman seeking follow-up treatment for complications following her abortion, and the woman died, the protestors could be charged with a crime the sentence for which could be death.

Under this provision, protesters could be charged with the death penalty as the result of a tragedy. While dangerous protest tactics can be punished under the law, they are not terrorism and should not be treated as if they were.

ENDNOTE

[1] See United States v. Salerno, 481 U.S. 739, 751 (1987) (holding that pretrial detention is constitutional “”[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community””).