ACLU Interested Persons Memo Updating the Status of "Pieces of Patriot II" Proposals

ACLU Interested Persons Memo Updating the Status of "Pieces of Patriot II" Proposals

To: Interested Persons

Re: Patriot Act II, piece by piece

Just six weeks after the terrorist attacks in New York and Washington on September 11, 2001, Congress approved the USA PATRIOT Act (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 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, attempts to attach pieces of Patriot II to other bills, and other strategies, such as re-writing extradition treaties.

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.

Beside these proposals endorsed by President Bush, other bills are also pending which include provisions of Patriot II or similar powers.

In arguing for additional legal authorities, Administration officials almost never acknowledge the scope of their existing legal powers. To rectify this gap, this memorandum explains, in each area, 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, detain terrorism suspects without bail, and obtain death sentences for serious federal crimes, including terrorism.

In some cases, the government now says it has not even used certain Patriot Act powers - such as the power to obtain library or other sensitive records in intelligence cases without probable cause or individualized suspicion. The government has not explained why it has not used some existing Patriot Act powers. The most logical explanation is that they were 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 these Patriot Act powers even further.

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, 185 communities in 32 states, representing over 25 million people - as well as three 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.

Proposals to expand Patriot Act powers include the following:

Proposals Endorsed by President Bush:

• So-called ""administrative subpoenas"" that permit compelled testimony without a judge or grand jury and eliminate prior court review for searches of library, medical, and other sensitive records.

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, 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 recently said that the government had not used one of these powers - FISA document orders. He did not provide any further 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.[5]

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, as proposed in H.R. 3037 (see below), 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,[6] 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.

Status:

Feb. 2003: Appeared in section 303 of DSEA (Patriot II).

July 2003: Appeared in draft ""Vital Interdiction of Criminal Terrorist Organizations (VICTORY) Act of 2003,"" a ""narco-terrorism"" bill circulated by Senator Hatch (R-UT), reportedly drafted with assistance from DOJ.[7]

Sept. 9, 2003: Introduced by Rep. Feeney (R-FL) as H.R. 3037, the ""Antiterrorism Tools Enhancement Act of 2003.""[8]

Sept. 10, 2003: Endorsed by President Bush in speech at FBI.

• Expanding pretrial detention and lifetime supervision for laundry list of crimes said to be terrorism-related beyond what is already provided in Patriot Act.

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.

Status:

Feb. 2003: Appeared at section 405 of draft DSEA (Patriot II).

June 5, 2003: Endorsed by Attorney General Ashcroft in testimony before the House Judiciary Committee.

Sept. 9, 2003: Introduced in the House by Rep. Goodlatte (R-VA) as H.R. 3040, the ""Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003.""[9]

Sept. 10, 2003: Introduced in the Senate by Senator Kyl (R-AZ) as S. 1606, the ""Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003.""

Sept. 10, 2003: Endorsed by President Bush in speech at FBI.

• Dramatically expand the death penalty, so that any state or federal crime that meets the Patriot Act's overbroad definition of ""domestic terrorism"" would carry a death sentence if death results.

Current Law: Federal law includes a laundry list of thirty-eight ""Federal crimes of terrorism"" at 18 U.S.C. § 2332b(g)(5). Twenty-three of these crimes carry a death penalty if death results. In addition, many acts of terrorism also constitute crimes under state law (e.g., murder), and therefore would carry the death penalty if that state provides for the death penalty for that crime.

Proposed Change: This proposal would provide a death penalty for any federal or state crime that meets the Patriot Act's definition of ""domestic terrorism"" if death results. Such a proposal would exacerbate the serious civil liberties problems of the Patriot Act's definition of terrorism. The Patriot Act definition provides that any criminal act that is intended to influence government policy by ""intimidation or coercion"" and involves ""dangerous acts"" is ""domestic terrorism"" -- a definition that could cover the civil disobedience activities of Operation Rescue, Greenpeace, People for the Ethical Treatment of Animals and other protest groups. For example:

• Protestors at a trade conference chain themselves together in a parking lot entrance to block ministers from entering a building, violating a local trespassing statute and endangering their lives and those around them. A frustrated chauffer drives toward the crowd and crushes a bystander to death. Under this proposal, a prosecutor could seek the death penalty against the protestors for ""domestic terrorism.""
• An organization of gun rights supporters gather at the state capitol to demonstrate against a new gun control law. Some of the demonstrators carry firearms in violation of the law's new ban on carrying them without a permit. After the speaker at the rally says, ""Whatever it takes, we're going to show those politicians we won't give up our right to bear arms,"" one in the crowd shouts, ""That's right,"" and fires his weapon into the air. The bullet strikes a passerby and kills him. Under this proposal, a prosecutor could seek the death penalty against the protestors for ""domestic terrorism.""

The new definition would authorize the death penalty for such criminal acts, if they meet this definition, regardless of whether the crime is a federal or state crime, regardless of whether the crime carries the death penalty, and regardless of whether the state or jurisdiction whose law was violated has a death penalty.

This proposal would also create fifteen new federal death penalties, by adding a death penalty for each crime on the laundry list of crimes listed as terrorism-related which do not currently provide for the death penalty. One such crime - ""material support for terrorism"" - requires only that the government show the individual gave assistant to an organization designated as a terrorist organization, even if the individual 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. Under this proposal, the defendant could be charged with a death penalty offense.

Status:

Feb. 2003: Appeared as section 411 of the DSEA (Patriot II).

June 5, 2003: Endorsed by Attorney General Ashcroft in testimony before the House Judiciary Committee.

July 25, 2003: Introduced by Rep. Carter (R-TX) as H.R. 2934, the ""Terrorist Penalties Enhancement Act of 2003.""[10]

Sept. 9, 2003: Introduced by Senator Specter (R-PA) as S. 1604, the ""Terrorist Penalties Enhancement Act of 2003.""

Sept. 10, 2003: Endorsed by President Bush in speech at the FBI.

Other Administration Proposals:

• Eliminating the ""foreign power"" safeguard from intelligence wiretaps and searches.

Current Law: Under current law, when the federal government has probable cause of crime, it can obtain a search warrant. It can also get a court order to place a wiretap where it has probable cause to investigate any federal crime that is listed as a wiretap predicate. By contrast, intelligence wiretaps and physical searches do not require probable cause of crime; instead, they require that the government show probable cause to the Foreign Intelligence Surveillance Court (FISC) that the target is connected to a foreign power, i.e., a foreign government or organization. The FISC sits in secret and hears only the government's side. It has rarely questioned - and only once denied (with leave to amend) - government applications for FISA surveillance.

Proposed Change: This proposal eliminates a key protection against wiretaps and searches under the Foreign Intelligence Surveillance Act (FISA) - the requirement that the government show probable cause that the target is connected to a foreign power. This proposal would eliminate that essential safeguard for persons suspected of involvement in international terrorism. The federal courts have said the foreign power requirement is important to the constitutionality of FISA surveillance. The foreign power limit also is among the most important of post-Watergate reforms to intelligence gathering powers that, when not limited to agents of foreign powers, resulted in such abuses as the illegal wiretapping of Martin Luther King and other civil rights leaders.

The government cites its failure to seek a warrant to search the belongings of suspected terrorist Zacarias Moussaoui as a reason for the change. However, the Joint Inquiry of House and Senate Intelligence Committees found that Moussaoui's property was not searched because the government misunderstood its existing legal powers. The Joint Inquiry faulted the government for not seeking a warrant under either its criminal powers or its intelligence powers as a result of a mistaken interpretation of the law. The Joint Inquiry recommended greater attention to continuing legal training, not a change in the law.

Status:

Feb. 2003: Appeared as section 101 of draft DSEA (Patriot II).

April 29, 2003: Reported out of Senate Judiciary Committee as S. 113, with support of Justice Department. S. 113 limited this change to non-citizens.

May 8, 2003: Passed Senate.

• ""Good faith"" exception for illegal wiretaps.

Current Law: Federal law authorizes the government to obtain a court order, based on probable cause of criminal activity, to place wiretaps in many cases of serious crime, including terrorism. The Foreign Intelligence Surveillance Act (FISA) permits the government to obtain an order from a secret court for wiretaps in foreign intelligence cases. FISA permits emergency authorization by high Executive Branch officials for some wiretaps when the government cannot seek court review because of a lack of time. Illegal wiretapping carries criminal penalties. Evidence obtained in court using illegal wiretaps, like other illegally-obtained evidence, is not admissible in court. Where the government uses evidence from FISA wiretaps, a defendant may be effectively unable to challenge the legality of the wiretap because the wiretap application and supporting evidence is classified.

Proposed Changes: There have been two proposals to create a ""good faith"" exceptions for illegal wiretapping:

• The draft DSEA (Patriot II) contained a provision to immunize federal agents from criminal penalties for illegal wiretapping if they were acting in ""good faith"" on the orders of high Executive Branch officials. If such a proposal became law, it would lessen the incentive for lower level officials to question illegal orders of their superiors, such as the illegal orders given to wiretap political opponents of President Nixon that were issued by his Attorney General.
• The draft Victory Act contains a provision to provide a good faith exception that would allow illegally obtained wiretap evidence to be used in a court of law. This proposal would seriously undermine the exclusionary rule - the rule that prohibits the use of illegally obtained evidence in court. The exclusionary rule is important because it serves to enforce statutory wiretap protections, such as limits on ""roving wiretaps"" that are designed to protect innocent conversations. The Patriot Act expanded wiretapping authority; this proposal would make abuse of that expanded authority far more likely.

Status:

Feb. 2003: ""Good faith"" exception appears in section 302 of draft DSEA (Patriot II).

July 2003: A different ""good faith"" exception appears in the draft ""Victory Act,"" circulated by Senator Hatch (R-UT).

• Broadening guilt-by-association crime of ""material support to terrorism""

Current Law: Federal law provide penalties for providing ""material support,"" including money or other resources, to an organization designated as a terrorist organization. It does not matter if the defendant thought he was giving to support charitable activities or even if those resources actually supported only charitable activities. The defendant can be convicted even if he did not know the organization was designated as a terrorist organization and may not challenge the government's designation of the organization. See 18 U.S.C. § 2339B.

Proposed Changes: There have been two proposed changes to the material support statute, both of which would exacerbate the constitutional problems of this already overbroad crime:

• The draft DSEA (Patriot II) contained a provision that makes a crime merely to associate with a banned organization by, for example, providing ""one of more individuals (which may include himself) to work in concert with the organization."" In other words, mere association with the organization is a crime regardless of whether the association involves any violent or illegal activity.
• The draft ""Victory Act"" would create a new crime of ""narco-terrorism"" that would make th