The following is mirrored from its source at
http://archive.aclu.org/congress/l102301i.html.
© 2001, American Civil Liberties Union. Reprinted with permission of the
American Civil Liberties Union (www.aclu.org).
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How the USA-Patriot Act Enables Law Enforcement
to Use Intelligence Authorities to Circumvent
the Privacy Protections Afforded in Criminal Cases
The final version of the anti-terrorism legislation, the Uniting
and Strengthening America By Providing Appropriate Tools Required
To Intercept and Obstruct Terrorism (H.R. 3162, the "USA PATRIOT
Act") would extend the authority of the FBI to spy on Americans
for "intelligence" purposes, as opposed to investigating criminal
activity. This authority seems designed to circumvent normal
criminal procedures and the privacy protections that are built
into those procedures. Section 218 of the USA PATRIOT Act would
amend the Foreign Intelligence Surveillance Act ("FISA," 50 U.S.C.
1801 et seq.) so that the FBI could secretly conduct a physical
search or wiretap primarily to obtain evidence of crime without
proving probable cause of crime. Intelligence authority would
suffice, even when the person whose home the FBI breaks into, or
whose telephone it taps, is an American. Section 215 of the USA
PATRIOT Act would grant FBI agents across the country breathtaking
authority to obtain an order from the FISA court or any federal
magistrate requiring any person or business to produce any books,
records, documents or items. The judge exercises no discretion: he
must issue the order upon receipt of the FBI application asserting
that the FBI seeks the records for a foreign intelligence
investigation.
The FBI has a sad history of abusing broad foreign intelligence
investigative authority. It has investigated people because of
their ethnic or racial background, or because of their political
viewpoint. For example, during the late 1960's and early 1970's it
conducted the COINTELPRO investigation, an effort to spy upon and
disrupt the anti-Vietnam War and pro-civil rights movements.
During the 1980's, the FBI launched a 27-month "intelligence"
investigation of the Committee In Solidarity With the People of El
Salvador because its members opposed U.S. policy of aiding
repressive regimes in Central America. CISPES's political activity
-- protected by the First Amendment -- became the subject of a
nationwide intensive investigation. The Attorney General
Guidelines that govern FBI conduct of this and other foreign
intelligence investigations are largely secret, and did not
prevent this abuse. The new intelligence surveillance authorities
authorized by the USA PATRIOT Act may well trigger the same kinds
of conduct.
Evading the Probable Cause Requirement of the Fourth Amendment
The Fourth Amendment to the Constitution requires that before the
government conducts an invasive search to find evidence of crime,
it must prove to a judicial officer that it has probable cause of
crime. This requirement helps ensure that wiretaps and search
warrants are applied only to those likely to be involved in
criminal activity, and not to others. In addition, FISA gives the
FBI the authority to conduct secret physical searches and wiretaps
to obtain "foreign intelligence information." 1 FISA searches are
not conditioned upon a showing of probable cause of crime. Though
notice to the target is the general rule for physical searches in
criminal cases, FISA physical searches are "black bag jobs." Law
enforcement agents secretly break into a home or business and
conduct a search without notice. Indeed, the party whose privacy
was compromised is never informed unless there is a later criminal
prosecution. In such prosecutions, the target of FISA surveillance
cannot obtain discovery of the FISA court order application
because it is secret, and therefore cannot effectively challenge a
search or wiretap conducted illegally. In contrast, a defendant
whose home is searched or conversations seized under the
government's criminal investigative authority can obtain a copy of
the warrant or court order application, and challenge the search
if there are defects.
Congress was careful when granting this authority to search for
intelligence reasons to ensure that it would not be used as an end
run around the probable cause requirement. It required that the
primary purpose of the search or wiretap be to gather foreign
intelligence. If the primary purpose of surveillance is a criminal
investigation, the FBI must have probable cause of crime.
Section 218 turns this concept upside down. It permits the FBI to
conduct a secret search or to secretly record telephone
conversations for the purpose of investigating crime even though
the FBI does not have probable cause of crime. The section
authorizes unconstitutional activity -- searches and wiretaps in
non-emergency circumstances -- for criminal activity with no
showing of probable cause of crime.
This provision is unnecessary. Evidence gathered in intelligence
wiretaps is now often admissible in criminal prosecutions.
However, courts will exclude the evidence gathered from
surveillance conducted under Section 218 because the probable
cause of crime requirement was not met for a search conducted
primarily to gather evidence of crime. As a result of this
unnecessary extension of intelligence gathering power, the
terrorist could go free when evidence about his activity is
suppressed in a criminal case.
The fact that Section 218 allows circumvention of the probable
cause of crime requirement only when intelligence surveillance is
"a significant purpose" of the wiretap or physical search does not
change this reality. Investigation of criminal activity cannot be
the primary purpose of FISA surveillance because if it is, FISA is
being used as an end-run around the Fourth Amendment. U.S. v.
Johnson, 952 F.2d 565 (1st Cir. 1991), cert. denied 506 U.S. 816
(1991).
The undated letter the Department of Justice sent to the chairmen
and ranking members of the House and Senate Judiciary Committees
to defend the constitutionality of Section 218 is based on the
astounding assertion that the Executive Branch has the inherent
authority to engage in warrantless counter-intelligence searches.
Daniel Bryant, Assistant Attorney General for the Department of
Justice wrote:
As the Commander-in-Chief, the President must be able to
use whatever means necessary to prevent attacks upon the
United States; this power, by implication, includes the
authority to collect information necessary for its
effective exercise.
The President is not above the law and the Constitution. The means
the Executive uses to conduct searches and electronic surveillance
are constrained by the Constitution. This assertion of power was
rejected by Congress when Congress enacted FISA, and should be
rejected today. Under FISA, intelligence surveillance must be
authorized by the FISA court, which consists of judges appointed
under Article III of the Constitution. The DOJ also argues that
since foreign intelligence often relates to people who are not
Americans, the President has a free hand in conducting
surveillance. However, Section 218 does not apply only to
non-citizens; this power grab will sweep in Americans as well.
In its fifteen-page letter, the Department of Justice fails to
cite even one instance since enactment of FISA in which a court
has admitted in a criminal case evidence gathered from a FISA
search conducted primarily for criminal purposes. In fact, it
relies heavily on U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.
1980) -- in which the court upheld electronic surveillance without
probable cause of a foreign government's agent precisely because
the search was conducted primarily for intelligence, as opposed to
criminal, purposes. The court found that:
"once surveillance becomes primarily a criminal
investigation, the courts are entirely competent to make
the usual probable cause determination, and because,
importantly, individual privacy interests come to the
fore and government foreign policy concerns recede when
the government is primarily attempting to form the basis
for a criminal prosecution." 629 F.2d at 915.
If Section 218 becomes law, Americans who oppose U.S. policies and
who are believed to have ties to foreign powers could find their
homes broken into and their telephones tapped. Though the
government would be searching primarily for evidence of crime, the
FBI would secretly conduct these searches and record these
conversations without showing probable cause of crime to a judge.
Evading the Requirement of Evidence of Crime
When Americans Are To Be Investigated
Section 215 of the USA PATRIOT Act would grant FBI agents across
the country breathtaking authority to obtain an order from the
FISA court or any federal magistrate requiring any person or
business to produce any books, records, documents or items. The
judge exercises no discretion: he must issue the order upon
receipt of the FBI application asserting that it seeks the records
in connection with a foreign intelligence investigation, or an
investigation to protect against international terrorism or
clandestine intelligence activities. This information can include
extremely sensitive information such as: medical records, mental
health records, financial records, video rental records,
fingerprints, DNA samples from a person's hair, employment
records, records of employment-based drug testing, and immigration
records maintained by non-profit agencies.
Under current law, FBI agents acting with a judicial or grand jury
subpoena issued in connection with a criminal investigation can
obtain access to much of this information. Privacy statutes and
regulations -- such as the Right to Financial Privacy Act --
protect some of this information, and require certain safeguards
such as notice. Section 215 would trump many of these legislative
schemes that were carefully crafted to protect sensitive
information. It explicitly bars notice to the party whose records
are being disclosed, and unlike current law, does not require that
law enforcement be conducting a criminal investigation.
The FBI already has authority to seek such orders to require
airlines, car rental companies and bus companies, and those who
maintain storage facilities, to turn over information for foreign
intelligence purposes. 18 U.S.C. 1861-3. However, it can use its
intelligence gathering authority to obtain this information only
when there are "specific and articulable facts giving reason to
believe that the person to whom the records pertain is a foreign
power or an agent of a foreign power." 18 U.S.C. 1862(a)(b)(2)(B).
The agent of a foreign power requirement protects most Americans
from this form of intelligence surveillance.2 Section 215 would
eliminate the requirement that the records pertain to an agent of
a foreign power and would grant the FBI access to all documents
maintained by all businesses, not just those maintained by
travel-related businesses. Moreover, Section 215 would extend
access not only to documents, but also to things.
This broad new authority threatens to usher in a new age of
investigation of Americans based on their political activities.
While Section 215 bars such investigation of Americans solely upon
the basis of activity protected by the First Amendment, it permits
such investigation based on First Amendment activity tied to other
conduct that relates to international terrorism or clandestine
intelligence activities. Similar ties were used to justify both
the COINTELPRO the CISPES investigations.
Endnotes
1. "Foreign intelligence information" is information of two
kinds:
a. any information that relates to, and if it concerns a
U.S. citizen or lawful permanent resident, is necessary
to, the ability of the U.S. to protect against hostile
acts of foreign powers or their agents, sabotage or
international terrorism by such persons, or secret
intelligence activities by such persons; and
b. information with respect to a foreign power that relates
to, and if it concerns a U.S. citizen or lawful
permanent resident, is necessary to, the national
defense, security, or the conduct of foreign affairs of
the U.S. 18 U.S.C. 1801(d).
2. An American is not an "agent of a foreign power" unless he or
she knowingly: engages in clandestine intelligence gathering
activities for a foreign power which may violate the law,
engages in sabotage or international terrorism on behalf of a
foreign power, enters the U.S. under a false identity for a
foreign power (or assumes such identity while in the U.S.),
or helps others do the same.
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