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[FYI] (Fwd) FC: ACLU on new anti-terror bill with expiration date: Oppose it!

------- Forwarded message follows -------
Date sent:      	Mon, 01 Oct 2001 20:54:56 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: ACLU on new anti-terror bill with expiration date: Oppose it!
Send reply to:  	declan@well.com

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Date: Mon, 01 Oct 2001 20:36:17 -0400
To: declan@well.com
From: Barry Steinhardt <Bsteinhardt@aclu.org>
Subject: Re: FC: Congress drafts new "anti-terror" bill -- with
   expiration date
In-Reply-To: <>


The new compromise Anti-terrorism still represents a significant
threat to civil liberties. I have attached the ACLU's statement, which
can also be found online at

Barry Steinhardt

House 'Compromise' Terrorism Bill Fails to Protect Civil Liberties;
ACLU Says Many Provisions Go Far Beyond Anti-Terrorism Needs FOR
IMMEDIATE RELEASE Monday, October 1, 2001

WASHINGTON - The American Civil Liberties Union today urged the House
of Representatives to reject proposed "compromise" anti-terrorism
legislation, saying that many of its provisions continue to go far
beyond any powers conceivably necessary to fight terrorism in the
United States. "This legislation still does not meet the basic test of
maximizing our security with minimizing the impact on our civil
liberties," said Laura W. Murphy, Director of the ACLU's Washington
National Office. "The compromise bill would have a long-term negative
impact on basic freedom in America that cannot be justified." Among
the bill's most troubling provisions, the ACLU said, are measures that
would allow for indefinite detention without meaningful judicial
review to non-citizens ordered removed from the country and minimize
judicial supervision of electronic surveillance by law enforcement
authorities. Another troubling provision would expand the already
broad definition of terrorism, which could lead to large-scale
investigations of American citizens for engaging in civil
disobedience. "Unless the significant civil liberties issues are
resolved by the House Judiciary Committee," said Gregory T. Nojeim,
Associate Director of the ACLU's Washington Office, "we will urge
members of Congress to oppose this legislation." Following are
highlights of the civil liberties implications of the compromise
legislation introduced by Judiciary Committee Chairman James
Sensenbrenner, R-WI, and Ranking Minority Member John Conyers, D-MI:
Immigration The ACLU said that the new Sensenbrenner-Conyers bill
would confer new and unprecedented detention authority on the Attorney
General based on vague and unspecified predictions of threats to the
national security. Specifically, the ACLU said that the new
legislation would permit the indefinite administrative detention of
any non-citizen ordered deported to a country that would not accept
him or her, based merely on the Attorney General's certification that
he has "reasonable grounds to believe" the non-citizen endangers
national security. "Very few countries will agree to take back one of
their citizens if the United States has labeled him a terrorist,"
Nojeim said. "Even though it says it has compromised on indefinite
detention, under this legislation, the Administration still achieves
the same result of being able to imprison indefinitely someone who has
never been convicted of a crime." In addition, the ACLU said that the
legislation provides for no meaningful review of the Attorney
General's certification because the standards for the certification
are so vague that judges would have no yardstick for which to judge
the appropriateness of the detention and the review could be had only
once, not years later while the non-citizen remained detained based on
a stale determination by the Attorney General. The ACLU also said that
the new Sensenbrenner-Conyers bill would endanger the family members
of asylum seekers by allowing the Secretary of State to inform the
government of the country alleged to engage in persecution that he was
seeking asylum. As a result, people entitled to asylum would not seek
protection out of fear that the persecuting government would attack
family members and colleagues left behind. Wiretapping and
Intelligence Surveillance On the question of wiretapping and
intelligence surveillance, the ACLU said that the wiretapping
proposals in the Sensenbrenner-Conyers legislation continue to sound
two themes: they minimize the role of a judge in ensuring that law
enforcement wiretapping is conducted legally and with proper
justification, and they permit use of intelligence investigative
authority to by-pass normal criminal procedures that protect privacy.
The ACLU said that it was specifically concerned about the following
provisions of the new Sensenbrenner-Conyers legislation: 1. The bill
would allow the government to use its intelligence gathering power to
circumvent the standard that must be met for criminal wiretaps.
Currently FISA surveillance, which does not contain many of the same
checks and balances that govern wiretaps for criminal purposes, can be
used only when foreign intelligence gathering is the primary purpose.
The compromise bill would allow use of FISA surveillance authority
even if the primary purpose is a criminal investigation if
intelligence surveillance remained a "significant" purpose. 2. Under
current law, a law enforcement agent can get a pen register or trap
and trace order requiring the telephone company to reveal the numbers
dialed to and from a particular phone. It must simply certify that the
information to be obtained is "relevant to an ongoing criminal
investigation." This is a very low level of proof, far less than
probable cause. The judge must grant the order upon receiving the
certification. The new bill would extend this low threshold of proof
to Internet communications that are far more revealing than numbers
dialed on a phone. For example, it would apparently apply to law
enforcement efforts to determine what websites a person had visited.
This is like giving law enforcement the power - based only on its own
certification -- to require the librarian to report on the books you
had perused while visiting the public library. This is extending a low
standard of proof - far less than probable cause -- to "content"
information. 3. In allowing for "nationwide service" of pen register
and trap and trace orders, the bill would further marginalize the role
of the judiciary. It would authorize what would be the equivalent of a
blank warrant in the physical world: the court issues the order, and
the law enforcement agent fills in the places to be searched. This is
not consistent with the important Fourth Amendment privacy protection
of requiring that warrants specify the place to be searched. Under
this legislation, a judge would be unable to meaningfully monitor the
extent to which her order was being used to access information about
Internet communications. The Senate amendment to the Commerce, Justice
and State Appropriations bill included a similar provision. The ACLU
noted that the FBI already has broad authority to monitor telephone
and Internet communications. Most of the changes proposed in the bill
would apply not just to surveillance of terrorists, but instead to all
surveillance in the United States. Law enforcement authorities -- even
when they are required to obtain court orders - have great leeway
under current law to investigate suspects in terrorist attacks.
Current law already provides, for example, that wiretaps can be
obtained for the crimes involved in terrorist attacks, including
destruction of aircraft and aircraft piracy. The FBI also already has
authority to intercept these communications without showing probable
cause of crime for "intelligence" purposes under the Foreign
Intelligence Surveillance Act. Little is known about the extent of
this wiretapping, other than that FISA wiretaps now exceed wiretapping
for all domestic criminal investigations. The standards for obtaining
a FISA wiretap are lower than the standards for obtaining a criminal
wiretap. Criminal Justice One of the overarching problems with the
bill is the very broad definition of "terrorism" that already exists
under federal law. Under the original Administration provision - and
remaining in the Sensenbrenner-Conyers legislation - the broad
definition of terrorism combined with the proposed harsher criminal
penalties could lead to thousands of protestors at an anti-war rally
to be labeled as conspirators in a terrorist plot. Even House
Intelligence Committee Chairman Porter Goss, R-FL, told the Los
Angeles Times that he is troubled by the implications of a broad
definition of terrorism. "The trouble is, 'terrorism' is a very broad
word and it lends itself to a lot of mischief for people who would
abuse common sense," he told the Times. The ACLU said it supports
limiting the definition of terrorism to cases involving death or
serious bodily injury. The other major concern is that the bill allows
for the broad sharing of sensitive information with intelligence
agencies, including the CIA, the NSA, the INS and the Secret Service.
It would permit sharing information gathered through wiretaps and
confidential grand jury information without any safeguards regarding
the future use or dissemination of such information. "In sum," the
ACLU's Murphy said, "the proposed compromise legislation does include
some improvements from the Administration's original legislation. But
we are still deeply concerned that the compromise measure continues to
weaken essential checks and balances on the authority of federal law
enforcement in a manner that is unwarranted."

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