PATRIOT Act II: Back From the Dead

Civil liberties advocates are once again raising concern over legislation moving through Congress meant to enhance the controversial USA PATRIOT Act rushed into law in the wake of the Sept. 11 terrorist attacks. Last Monday, the Senate Judiciary Committee held a hearing on the "Tools to Fight Terrorism Act of 2004," which opponents say contains proposals that would dramatically erode constitutional protections and unnecessarily increase government power.

The American Civil Liberties Union, which has been at the forefront of a grassroots fight to repeal provisions of the PATRIOT Act, chided Congress on its consideration of legislation that would expand the power of the law enforcement before meaningfully weighing the effects of current legislation.

"Congress must not repeat the mistakes of the PATRIOT Act and adopt laws that undermine freedom with little added security," Laura W. Murphy, director of the group’s Washington Legislative Office, said in a press statement. "Instead of considering new laws to further erode our privacy and freedoms, the Senate should be reviewing the PATRIOT Act to bring it in line with the Constitution."

PATRIOT II, Back From the Dead
The Tools to Fight Terrorism Act (TFTA), or S. 2679, was introduced by Senator Jon Kyl (R, Ariz.). It is massive and contains several provisions that were originally proposed in a leaked draft of the Domestic Security Enhancement Act, commonly known as "PATRIOT II" – legislation so alarming public outcry squashed it almost immediately. Though S. 2679 is currently being considered in the Senate Judiciary Committee, the ACLU is afraid that Sen. Kyl may try to attach some of its provisions to a separate bill proposed to implement a set of the 9/11 Commission recommendations, which bears significant momentum.

Such a move, says the ACLU, would directly contradict the recommendations of the 9/11 Commissioners, who advised a "full and informed debate on the PATRIOT Act." The Commissions also wrote that "[t]he 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."

More Evidence-Gathering Powers
TFTA would expand the government’s ability to obtain personal records and compel testimony without judicial oversight, increase the number of crimes that are punishable by the death penalty, deny bail to suspects who the government has not proven as dangerous or at risk of flight, broaden the definitions of "material support for terrorism" and money laundering, and change the rules for using secret evidence in immigration hearings.

In a press statement about TFTA Sen. Kyl said that the legislation’s purpose is to provide law enforcement "with the tools they need to do their jobs effectively." He said, "Every provision in this bill has been vetted extensively and many have been languishing for months if not years. There’s no excuse for Congress not to move quickly to make these improvements to our homeland security."

But there is debate about whether new government powers are in fact needed. In his written statement submitted to the Judiciary Committee, Timothy Edgar, legislative counsel for the ACLU, argued that current law already provides the essential tools for fighting serious crimes, including terrorism. As far as Edgar is concerned, several provisions of the PATRIOT Act were themselves unnecessary and enhancing government power even more is counterproductive.

"In arguing for additional legal authorities to address terrorism, administration officials almost never acknowledge the scope of their existing legal powers," wrote Edgar. "In fact, the DOJ [Department of Justice] 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."

Currently, under the PATRIOT Act, the Federal Bureau of Investigation (FBI) can obtain credit reports and records from financial institutions and communication service providers through the use of National Security Letters (NSLs). These Letters can be issued without oversight of a court and contain a "gag order" forbidding the receiver from disclosing to anyone that records have been searched. NSLs have become the center of a lawsuit challenging their constitutionality. It is unknown how many of these Letters the FBI has already issued.

If in the course of an investigation into terrorist activities, agents want records from other "third party holders" such as libraries, bookstores, or doctors’ offices, the FBI can obtain a warrant from a Foreign Intelligence Surveillance Act (FISA) court. Such FISA warrants have also been the source of controversy, as the proceedings of the FISA court are secret and the criteria used in determining the legitimacy and scope of such a warrant are much lower than those used by a criminal court or a grand jury.

However, a new "administrative subpoena" provision of the Tools to Fight Terrorism Act would allow the FBI to bypass even the FISA court when obtaining records or testimony from people who hold those records. Additionally, it would allow the attorney general to issue a "gag order" prohibiting the recipient of an administrative subpoena from telling anyone about it.

Currently, under FISA, the government can obtain court permission to secretly monitor someone they believe is working on behalf of a foreign power without having to provide the court with evidence that a crime is being planned or committed. The proposed bill would allow the government to extend this secret surveillance power to people who do not have a connection to a foreign power or terrorist group without requiring investigators to show probable cause.

In their joint testimony before the hearing, Assistant Attorney General Daniel J. Bryant and Barry Sabin, chief of the criminal division of the counter-terrorism section in the Justice Department, said, "[T]he reality today is that a terrorist who seeks to attack the United States may be a ‘lone wolf’ who is not connected to a foreign terrorist group, or someone whose connection to a foreign terrorist group is not known."

On behalf of the Justice Department, Bryant and Sabin argue that the new bill would "update FISA by permitting the FBI to apply to the FISA court for surveillance or search orders if they can show probable cause to suspect that a foreign national in the United States is engaged or may be preparing to engage in international terrorist activity, even if they cannot immediately link that person to a particular foreign power."

But Edgar of the ACLU disagrees that pre-9/11 law was insufficient. He argues that so far the Department of Justice has not been able to provide a single example of a case in which they were unable to obtain the surveillance power they needed either through existing criminal law or through a FISA warrant.

When this provision was proposed in the House as part of the Anti-Terrorism Intelligence Tools Improvement Act of 2003, a coalition of almost 80 organizations expressed concerns in a letter to lawmakers. "Congress originally approved the FISA with the explicit requirement that it would only be used against individuals acting on behalf of foreign governments or groups," the letter reads. "This connection to a foreign power is essential to the constitutionality of FISA, which contains lower probable cause standards than are required in criminal cases."

Even Lower Burden for Detention of Suspects
Another controversial aspect of the proposed act would require judges to deny bail to suspects accused of a variety of crimes related to terrorism, without requiring the government to show the suspect is dangerous or a flight risk.

In testimony before the Committee last week, the Justice Department’s Bryant and Sabin said: "Current law provides that federal defendants who are accused of serious crimes, including many drug offenses and violent crimes, are presumptively denied pretrial release. … But the law does not apply this presumption to those charged with many terrorism offenses. To presumptively detain suspected drug traffickers and violent criminals before trial, but not suspected terrorists, defies common sense."

They complained that because bail is not automatically denied during proceedings against suspects accused of material support for terrorism, "prosecutors had to participate and prevail in a nearly three-week hearing on the issue of detention, and were forced to disclose a substantial amount of their evidence against the defendants prematurely, at a time when the investigation was still ongoing."

Edgar countered, "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." He wrote: "After Sept. 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."

According to Edgar, the Department of Justice is "quick to label people as connected to terrorism and slow to clear them."

Expanded Death Penalty Eligibility
Senate Bill 2679 also includes a provision to greatly expand by 23 the number of crimes that are punishable by the death penalty, as well as create a death penalty for any federal crime meets the PATRIOT Act’s definition of "terrorism."

Currently 20 of the 43 "federal crimes of terrorism" are potentially capital offenses. The proposed bill would make all 43 death penalty-eligible. Among those added to the list of crimes potentially punishable by death would be: damage or destruction of aircraft or aircraft facilities; possession of biological agents by restricted persons; computer trespass resulting in acquisition of classified information; injury to buildings or property within special jurisdiction of the United States; destruction, injury or interference with communication lines, stations, or systems; harboring terrorists; providing material support to terrorists; providing material support to designated foreign terrorist organizations; and terrorism financing.

The proposed legislation would add the death penalty as punishment for federal felonies that result in death and meet the PATRIOT Act’s definition of international or domestic terrorism – a definition which has itself been a point on contention for rights groups across the political spectrum because of its breadth. The PATRIOT Act says domestic terrorism includes any crimes that "involve violent acts or acts dangerous to human life" and "appear to be intended" to influence government or a civilian population by "intimidation or coercion."

The ACLU says this definition is "so broad that many legitimately fear they could cover the civil disobedience activities of diverse protest organizations, including Operation Rescue, Greenpeace, and the anti-globalization movement."

In his statement to the Judiciary Committee, Edgar wrote: "This ‘catch-all’ death penalty provision 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. . . . Protest organizations have already been significantly chilled by the USA PATRIOT Act’s definition of some civil disobedience tactics as forms of terrorism. A death penalty based on that definition would multiply the chilling effect dramatically."

Secret Evidence in Non-Terror Cases
Another provision of the Tools to Fight Terrorism Act would allow for the use of evidence gathered with FISA warrants to be used in immigration cases without providing notice and an opportunity for the accused to challenge the evidence as is currently mandated under FISA.

"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," writes Edgar. "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."

The bill expands the definition of "material support for terrorism" and weakens the burden of proof for money laundering. According to the ACLU, the proposed law changes material support to include mere association with an organization that has been designated as a terrorist organization, even if the involvement has nothing to do with violence or criminal activity. The ACLU also fears that the expanded definition of money laundering will sweep up innocent users of money transfer systems.

Criminalization Over Security
A large portion of the proposed bill is dedicated to creating a number of new federal crimes for possessing Man-Portable Air Defense Systems, atomic weapons, radiological dispersal devices, and smallpox, as well as crimes affecting seaport, railroads and mass transportation.

While proponents of these measures say the increased penalties are necessary in order to deter criminal acts, the ACLU argues that creating new crimes and punishments will not improve national security.

"[I]nstead of providing resources to address the known deficiencies in port and railroad security or in the safeguarding of sensitive biological materials, the bill simply provides a host of new federal crimes," Edgar wrote to the Judiciary Committee. "Congress should address real deficiencies in homeland security instead of simply offering new, duplicative and unnecessary crimes."