Answers to Written Questions Posed to Professor Nadine Strossen, President of the ACLU, Following Her Testimony before the Senate Judiciary Committee on November 18, 2003: "America After 9/11: Freedom Preserved or Freedom Lost?"

Answers to Written Questions Posed to Professor Nadine Strossen, President of the ACLU, Following Her Testimony before the Senate Judiciary Committee on November 18, 2003: "America After 9/11: Freedom Preserved or Freedom Lost?"

Questions by Senator Patrick Leahy

1. The State Department's determination that Syria is among those countries that violate fundamental human rights by using torture casts serious doubt on the lawfulness of a policy of rendering detainees in United States custody - however and wherever captured and wherever held - to the government of Syria.

In fulfillment of the United States' obligations under the Convention Against Torture, Congress has enacted legislation that makes the commission of torture by anyone - even outside the United States - a federal crime. The statute defines torture as ""an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."" 18 U.S.C. § 2340(1). The term ""severe mental pain or suffering"" is further defined to include such techniques as threatened or actual forced administration of drugs, the threat of imminent death, or the threat of killing or torturing another. 18 U.S.C. § 2340(2). The State Department has found that Syria often uses techniques on prisoners that fall within this definition.

United States courts have jurisdiction over the crime of torture if the alleged offender is a national of the United States or is present within the United States. 18 U.S.C. § 2340A. The crime of torture carries penalties of up to 20 years in prison and (if death results) life in prison or the death penalty. Id. The statute also provides the same penalties (except for the death penalty) for persons who conspire to commit torture. Incidentally, the crime of torture is also listed as a federal crime of terrorism under 18 U.S.C. § 2332b(g)(5)(B)(i).

It is doubtful whether rendering any prisoner to Syria is consistent with United States obligations under the Convention Against Torture, given Syria's systematic use of torture. Where the United States knows of specific plans to use methods that amount to torture in the interrogation of particular suspects, it may well be a criminal offense for United States officials to participate in rendering a detainee to Syrian custody.

In October 2003, the ACLU and other human rights organizations submitted a request for any records involving allegations of torture of detainees in United States custody or who are in the custody of governments to which the United States rendered detainees. The request makes clear that the ACLU is not seeking the release of any properly classified information. Unfortunately, as in other cases in which the ACLU has requested basic information concerning terrorism investigations and detentions, the government has not provided responsive documents. We urge you and other members of the Senate Judiciary Committee to insist that these documents be released immediately.

2. The ACLU is profoundly disturbed by any reports that the FBI is collecting information on First Amendment activities because such information collection can chill unpopular speech or speech that is critical of government policies such as the war in Iraq. The revelation of the FBI's nationwide efforts to coordinate surveillance of peaceful protest activities with state and local law enforcement agencies shows that concerns about the erosion of civil liberties after September 11, 2001 are well-founded. The New York Times described a memorandum which specifies how FBI agents, in conjunction with local police, can counter the tactics of demonstrators. Particularly troubling is a section that warns against the so-called ""intimidation"" that results from protesters using hand-held video cameras to monitor police responses to demonstrations. Such use of videotape is entirely appropriate to both deter and document possible abuses by law enforcement officers.

Our concerns do not stop with the FBI's memorandum, but also relate to the misuse of Joint Terrorism Task Forces, such as the task force in Denver, Colorado, to collect information on citizens who are activists in local causes but have nothing to do with terrorism. We have also protested the relaxation of FBI investigative guidelines in place since the late 1970's. These guidelines now permit the monitoring of peaceful protests and religious and political meetings with no requirement that there be any indication anyone is planning to do anything illegal. The FBI has also indicated it has no mechanism for tracking how much of its agents' time is spend on such surveillance, frustrating accountability. The lack of any standard for the use of FBI investigative resources is an invitation to government action that is arbitrary at best and discriminatory at worst.

Congress should promptly hold hearings to investigate these revelations of surveillance of peaceful, constitutionally-protected activities by the FBI and by state and local police. Scarce law enforcement investigative resources would be better used investigating real terrorists, who do not announce their plans at peaceful demonstrations or public meetings. Congress should enact legislation to ensure that investigative resources are not diverted from the terrorism mission by prohibiting surveillance of demonstrations and political gatherings absent a reasonable indication that the gathering of such information would be relevant to the investigation or prevention of some criminal activity.

3. Our primary concern with programs like TIPS and TIA is their potential to create a surveillance society, in which law-abiding citizens and others must fear the government will keep track of their every electronic transaction. A lack of privacy safeguards, coupled with advances in technology, put few if any real barriers between the government's use of data collected by third parties and then aggregated for marketing or other purposes. Our privacy tools have not kept pace with advancing technologies. For more information about our concerns regarding data mining, please see the ACLU's report by Jay Stanley and Barry Steinhardt, Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society (January 2003), which is appended at the end of these answers as appendix A.

CAPPS II poses these dangers, but also poses other specific problems. For example, the government still has not provided for an effective way that someone who is wrongly flagged as a suspected terrorist, or otherwise as a danger to civil aviation, can get his or her name off what amounts to a ""no-fly"" list. These due process problems could undermine public confidence in the government's aviation security efforts and could also exacerbate the problem of racial profiling.

Congress has barred the Transportation Security Administration (TSA) from proceeding with CAPPS II unless the Department of Homeland Security certifies that the program will be effective and that passengers' privacy, due process, and equal protection rights will be protected. The General Accounting Office (GAO) is also required to release a report by February 15, 2004, addressing these issues.

For more information, please see the ACLU's fact sheet on problems with CAPPS II, which is appended at the end of these answers as appendix B. As this fact sheet explains, the concept behind the CAPPS II program suffers from fundamental flaws. The program should therefore be abandoned in favor of more effective and proven air security measures that require additional funding to implement. We urge Congress to fund these measures, rather than waste its limited air security dollars on a complex and ultimately unworkable surveillance system.

4. The policies of this Administration towards immigrants have had the effect of equating immigrants with terrorists. Even as the Department of Justice took swift and decisive action to stop hate crimes against Arabs, Muslims, and South Asians, it began a massive preventive detention campaign. This campaign has resulted in the secret detention and deportation of close to 1000 immigrants designated as ""persons of interest"" in its investigation of the attacks. Government officials now acknowledge that virtually all of the persons that it detained shortly after September 11 had no connection to terrorism. While the government told the public not to engage in ethnic stereotyping or to equate immigrants in general with terrorists, its own policies did precisely that.

Under new Department of Justice policies, immigrants today can be arrested and held in secret for a lengthy period without charge, denied release on bond without effective recourse, and have their appeals dismissed following cursory or no review. They can be subjected to special, discriminatory registration procedures involving fingerprinting and lengthy questioning concerning their religious and political views. An immigrant spouse who is abused by her husband must fear deportation if she calls the local police. Asylum-seekers fleeing repressive regimes like those of the Taliban or Saddam Hussein may face mandatory detention, without any consideration of their individual circumstances.

One example of an ill-considered policy that has been adopted after September 11, 2001 with implications for all immigrants - and not only those who are suspected of involvement in terrorism - is this Administration's invitation to state and local police to become deeply involved in immigration enforcement. This change to a decades-old Department of Justice policy violates the considered views of many state and local police chiefs and organizations. They fear such local involvement in federal immigration matters could pose a threat to public safety because it will drive a wedge between the police and immigrant communities. Immigrants who are victims of crime, or witnesses to crime, will fear contacting local police if they believe that they, or close family members, could be deported as a result.

The federal government is now adding the names of persons who are suspected only of civil immigration infractions into the National Crime Information Center (NCIC) database, which is available to state and local police. The new policy violates two federal statutes - the statute establishing the NCIC, which limits the NCIC to criminal violations, and the Immigration and Nationality Act, which sets forth a comprehensive regulatory scheme that specifies the limited circumstances in which state and local police may be enlisted to enforce immigration laws. As a result, the ACLU and its coalition partners have filed a lawsuit seeking to set aside this policy.

America should focus its resources on investigating and apprehending those who intend to commit acts of terrorism. America puts itself at greater risk by alienating immigrant communities, making immigrants distrustful and fearful of government.

The ACLU's Washington Legislative Office Director, Laura Murphy, provided comprehensive testimony on the effects of this Administration's policies on immigrants at a hearing before the Immigration Subcommittee of the House Judiciary Committee on May 8, 2003. That testimony is attached at the end of these answers as appendix C.

5. The ACLU, and coalition partners such as the Center for National Security Studies, have made a number of FOIA requests since September 11, 2001 regarding the government's detentions of ""persons of interest"" to the investigation, its use of national security letters and other surveillance powers expanded by the USA PATRIOT Act (including its expanded records power under section 215 of the Act), problems with innocent travelers who have found themselves on the government's ""no fly"" list, and allegations that suspects returned to Syria and other repressive regimes have been tortured.

In every case, these requests have been rebuffed by the Administration and the ACLU has had to go to court to try to establish the public's right to know this basic information. The ACLU has been careful in its requests to make clear that we do not seek access to properly classified information. Still, the government has been adamant in its refusal to release this information. The government's attitude towards public access has certainly contributed to the mistrust many Americans have of its actions in the anti-terrorism arena. It is both ironic and troubling that, even as the ACLU and its partners are refused basic information from the government, officials complain that the public is not well informed about its anti-terrorism actions.

One particularly stark example of such non-responsiveness, which is attached at appendix D, is an entirely blacked-out list of orders for national security letters. The list obviously provides no useful information at all about the government's use of this controversial surveillance power.

In September 2003, Attorney General Ashcroft announced that the government had not used one particular section of the USA PATRIOT Act, section 215, to obtain any records (including library records), arguing that this showed the privacy concerns of library users resulted from ""hysteria."" In fact, the Attorney General's announcement did not quell legitimate concerns about the use of other powers, including national security letters, to monitor Americans' reading habits. The Department has made it clear that it reserves the right to use section 215 in the future, and may have done so since the Attorney General's announcement in September. Even assuming for the sake of argument, however, that the Attorney General's point is valid, the ACLU had been asking for this information via a request under the FOIA for well over a year before the Attorney General's announcement. It is hard to see how the Justice Department can say its critics are guilty of fomenting hysteria when it rebuffs legitimate FOIA requests that allegedly could allay privacy fears.

6. The Justice Department has, from the beginning of this debate, sought to obscure, rather than illuminate, the legitimate civil liberties concerns raised by parts of the USA PATRIOT Act. The Department's statements in defense of the USA PATRIOT Act have been largely non-responsive to the complaints of civil liberties organizations. The example of the nationwide search warrants provision, at section 219 of the Act, are a case in point. Civil liberties groups do not object in principle to a nationwide search warrant power; rather, our concern is that the existence of such a power could provide a temptation for the government to engage in judge-shopping, i.e., choosing to apply for a warrant in a particular jurisdiction only because a judge is known to easily approve warrant applications. These concerns could be addressed by a sensible amendment to section 219 to ensure that a nexus exists between the investigation and the particular judge who is chosen to review nationwide search warrant applications.

The debate over the government's actions, and their impact on civil liberties, would be greatly aided by a more targeted discussion that focuses on the specific areas in which civil liberties are threatened.

Our most substantial objections to the USA PATRIOT Act concern only a handful of its provisions. Most of the highly troubling provisions of the USA PATRIOT Act are repealed by the Benjamin Franklin True Patriot Act, H.R. 3171. These are:

(1) Section 213, relating to `sneak and peak searches'.

(2) Section 214, relating to the use of pen registers for foreign intelligence purposes.

(3) Section 215, relating to the government's power to obtain certain business records under the Foreign Intelligence Surveillance Act.

(4) Section 216, relating to the use of pen registers in criminal cases.

(5) Section 218, relating to the Foreign Intelligence Surveillance Act .

(6) Section 411, relating to new grounds for deportation.

(7) Section 412, relating to mandatory detention of certain aliens.

(8) Section 505, relating to national security letters.

(9) Section 507, relating to educational records.

(10) Section 508, relating to collection and disclosure of individually identifiable information under the National Education Statistics Act of 1994.

(11) Section 802, relating to the definition of domestic terrorism.

The ACLU certainly agrees that many of the administration's most troubling actions are not authorized by the USA PATRIOT Act. Some of these actions are also rescinded or limited by the Benjamin Franklin True Patriot Act.

Other USA PATRIOT Act provisions, such as those regarding money laundering, may also pose dangers for civil liberties. These provisions have not been the focus of the ACLU's advocacy.

Finally, the ACLU certainly has no objection to large portions of the USA PATRIOT Act. Attached as appendix E is a chart that details the parts of the USA PATRIOT Act that the ACLU supports, or to which the ACLU has no objection. This chart may be useful to those who might wonder why the ACLU, which has been such a forceful critic of some parts of the USA PATRIOT Act, does not argue that the repeal of the entire Act is necessary to preserve civil liberties.

Questions by Senator Edward M. Kennedy

I. (1) It is completely inappropriate - and contrary to obligations the United States has assumed under the Convention Against Torture - for United States government officials to turn over custody of any person to any country if United States officials expect that country's government may torture that person. In fact, such action may well constitute a federal crime. Please see the answer to question 1 from Senator Leahy.

(2) If the news reports are accurate, the United States is clearly in breach of its international obligations under article 3 of the Convention Against Torture. Willful blindness seems the most appropriate description of the conduct recounted in these news reports. Outsourcing torture to be performed by others is no more acceptable, or lawful, than engaging in torture directly.

(3) Rendering suspects to Syria, or any other country that routinely practices torture, undermines the United States government's message urging respect for human rights everywhere, including in the Arab world. Actions speak louder than words. Credible allegations of cooperation by the United States in the use of unlawful interrogation practices will cause those who are fighting for human rights in countries that use torture to accurately view the United States as hypocritical. No amount of money spent on ""public diplomacy"" can erase the clear message sent by United States double standards on human rights in the war on terror.

II. (1) The Justice Department's decision to attack the findings of its own Inspector General regarding the mistreatment of immigration detainees after September 11 is deeply troubling. Such actions show that some of its officials still refuse to acknowledge any mistakes in its treatment of hundreds of immigration detainees, even when its own Inspector General has found serious abuses. These actions are also troubling to the ACLU as an organization because they seem to fly in the face of a speech given by FBI Director Robert Mueller at our membership conference on June 13, 2003. In that speech, Director Mueller indicated that the FBI welcomed the Inspector General's report and would work to change government policy in light of its recommendations.

Given that the OIG's recommendations were quite limited, and the apparent openness of Director Mueller to considering those recommendations, the aggressive attacks on the OIG that were posted on a DOJ website are quite troubling and call into question the Administration's good faith.

On December 18, 2003, the Office of Inspector General filed a new, highly disturbing report that documents even more instances of physical abuses of September 11 detainees. That report relies on videotapes that the Inspector General was told during his previous investigation had been destroyed. In fact, the videotapes had not been destroyed but were not where they were supposed to be. These new revelations raise additional questions about the good faith of the Department and its dedication to internal oversight.

The ACLU submitted testimony for the record of a hearing held on June 25, 2003 before this Committee entitled ""Lessons Learned - The Inspector General's Report on the 9/11 Detainees."" That testimony is also available on the ACLU's website at: /node/21249

(2) The recommendations of the Office of Inspector General (OIG), while positive, do not go far enough in addressing the root causes of the mistreatment of September 11 detainees. The government established, after September 11, a ""clearance"" process that resulted in what amounted to a presumption of guilt. The process by which detainees were administratively ""cleared"" of involvement in terrorism was entirely separate from the immigration hearings at which they were given virtually no useful information about the reasons for their detention.

As a result, while implementing in full the recommendations of the OIG would be a important first step, the potential for civil liberties abuses will remain as long as the government adheres to a ""hold until cleared"" policy. The government should honor President Bush's promise to cease relying on secret evidence in deportation proceedings by abandoning this policy and instead should permit detainees to confront terrorism accusations directly in open court.

The ACLU joined with other national organizations in submitting comments to Secretary of Homeland Security Tom Ridge, detailing our recommendations on what the Homeland Security Department must do to reform its detention practices in light of the Inspector General's findings. That letter is attached as appendix F.

(3) and (4). The regulatory and policy changes in curtailing the due process rights of immigrants should be promptly addressed by Congress. Legislation should be introduced, and passed, that reverses these violations of fundamental fairness. Legislation should:

• Prohibit the blanket closures of immigration hearings and prevent secret arrests by allowing immigration judges to determine on a case-by-case basis whether and when information can be withheld from the press and the public;
• Stop the open-ended detention, without charges, of non-citizens who are never certified as terrorism suspects under the USA PATRIOT Act, through strict time limits on when charges must be brought;
• Ensure that all non-citizens have a meaningful bond hearing, unless specially designated by Congress as subject to mandatory detention;
• Let immigration judges determine bond based upon the facts of the case, not a result of unspecified claims of harm to national security;
• Create an independent immigration court system for meaningful administrative review;
• Terminate the NSEERS ""special registration"" program that applies to nationals of Arab and Muslim nations and provide relief to certain classes of individuals adversely affected by the program;
• Eliminate draconian criminal penalties for technical violations of registration requirements, and for simple failure to file change of address forms;
• Require that information contained in the NCIC database adhere to Privacy Act standards;
• Affirm constitutional limits on government's secret seizures of records and databases through amendments requiring individual suspicion for the use of USA PATRIOT Act intelligence powers; and
• Ensure due process for the targets of secret surveillance by allowing defendants to obtain, through the Classified Information Procedures Act, more information about evidence obtained under the Foreign Intelligence Surveillance Act that is used against them in criminal trials.

Questions by Senator Russell D. Feingold

1. The ACLU's concerns about section 215 of the USA PATRIOT Act are detailed in my written statement, where I also describe the ACLU's lawsuit challenging this provision as a violation of the First and Fourth amendments. These constitutional infirmities are not assuaged by the fact that the government says it has not used this power. The government retains the right to use section 215, and may have done so since the Attorney General's announcement in September.

In any event, the existence of such a sweeping authority to obtain personal records - including library, bookstore, medical and other personal records - in intelligence investigations, without the ordinary safeguards associated with the criminal process, itself has a chilling effect on First Amendment and other constitutionally protected activity even if it is never used. In my written statement, I describe specific instances of organizations and individuals who have been chilled in the exercise of their constitutional rights by section 215. These instances show that the provision in section 215 that prohibits investigations of United States persons based ""solely"" on First Amendment activity has not proved a sufficient safeguard to ensure against the chilling of First Amendment rights.

Section 215 differs in critical respects from grand jury subpoenas. Section 215 does not require the approval of a federal prosecutor, and the information that is sought by a section 215 order need not relate to any investigation of criminal activity. A target of a section 215 order - unlike the target of a grand jury subpoena - may not inform anyone that an order has issued. The secrecy of section 215 would prevent targets of government surveillance from raising alarms about the use of the power with members of the press or civil liberties organizations. Finally, section 215 provides no mechanism for a recipient of an order to seek to quash the order before a judge, while a grand jury subpoena does provide such a mechanism.

Much of the public confusion surrounding section 215 may result from a series of misstatements and half-truths that Department officials have made in defending the controversial power. The ACLU has documented the Justice Department's misleading characterizations of section 215 in a report entitled ""Seeking Truth from Justice: Patriot Propaganda,"" which is attached to the end of these answers as appendix G.

2. As I describe in my written statement, the secrecy surrounding the September 11 detentions had the effect of facilitating serious civil liberties abuses. As you point out, the government's release of the names of