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© 2001, American Civil Liberties Union. Reprinted with permission of the American Civil Liberties Union (www.aclu.org).
USA Patriot Act Boosts Government Powers
While Cutting Back on Traditional Checks and Balances
An ACLU Legislative Analysis
1 November 2001
When President Bush signed the USA Patriot Act into law last week, he significantly boosted the government's law enforcement powers while continuing a trend to cut back on the checks and balances that Americans have traditionally relied on to protect individual liberty.
"This law is based on the faulty assumption that safety must come at the expense of civil liberties," said Laura W. Murphy, Director of the ACLU's Washington National Office. "The USA Patriot Act gives law enforcement agencies nationwide extraordinary new powers unchecked by meaningful judicial review."
"For immigrants," added Gregory T. Nojeim, Associate Director of the ACLU Washington Office, "the law is a dramatic setback that gives the government the authority to detain -- indefinitely in some cases -- non-citizens who are not terrorists on the basis of vague allegations of a risk to national security."
Among the USA Patriot Act's most troubling provisions, the ACLU said, are measures that:
- Allow for indefinite detention of non-citizens who are not terrorists on minor visa violations if they cannot be deported because they are stateless, their country of origin refuses to accept them or because they would face torture in their country of origin.
- Minimize judicial supervision of federal telephone and Internet surveillance by law enforcement authorities.
- Expand the ability of the government to conduct secret searches.
- Give the Attorney General and the Secretary of State the power to designate domestic groups as terrorist organizations and deport any non-citizen who belongs to them.
- Grant the FBI broad access to sensitive business records about individuals without having to show evidence of a crime.
- Lead to large-scale investigations of American citizens for "intelligence" purposes.
Following are highlights of the civil liberties implications of the USA Patriot Act, which was signed into law on Friday, October 26, by President Bush.
The USA Patriot Act confers new and unprecedented detention authority on the Attorney General based on vague and unspecified predictions of threats to the national security.
Specifically, the new law permits the detention of non-citizens facing deportation based merely on the Attorney General's certification that he has "reasonable grounds to believe" the non-citizen endangers national security. While immigration or criminal charges must be filed within seven days, these charges need not have anything to do with terrorism, but can be minor visa violations of the kind that normally would not result in detention at all. Non-citizens ordered removed on visa violations could be indefinitely detained if they are stateless, their country of origin refuses to accept them, or they are granted relief from deportation because they would be tortured if they were returned to their country of origin.
The ACLU noted that very few countries will agree to take back one of their citizens if the United States has labeled him a terrorist. Even though the Administration said it compromised on indefinite detention, in some circumstances the USA Patriot Act will fulfill the Administration's original goal of being able to imprison indefinitely someone who has never been convicted of a crime.
The ACLU also noted that the bill's expanded definition of terrorism will inevitably ensnare many non-citizens who have done nothing wrong on the basis of their political beliefs and associations. For the first time, domestic groups can be labeled terrorist organizations, making membership or material support a deportable offense. Non-citizens could also be detained or deported for providing assistance to groups that are not designated as terrorist organizations at all, as long as activity of the group satisfies an extraordinarily broad definition of terrorism that covers virtually any violent activity. It would then fall on the non-citizen to prove that his or her assistance was not intended to further terrorism.
Such groups as the World Trade Organization protesters, the Vieques protestors and even People for the Ethical Treatment of Animals (PETA), would, on the basis of minor acts of violence or vandalism, meet this overbroad definition. Non-citizens who provide assistance to such groups -- such as paying membership dues -- will run the risk of detention and deportation.
Wiretapping and Intelligence Surveillance
The wiretapping and intelligence provisions in the USA Patriot Act 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. Specifically:
- The USA Patriot Act allows 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 new law allows use of FISA surveillance authority even if the primary purpose were a criminal investigation. Intelligence surveillance merely needs to be only a "significant" purpose. This provision authorizes unconstitutional physical searches and wiretaps: though it is searching primarily for evidence of crime, law enforcement conducts a search without probable cause of crime.
- The USA Patriot Act extends a very low threshold of proof for access to Internet communications that are far more revealing than numbers dialed on a phone. 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. To get such an order, law enforcement must simply certify to a judge -- who must grant the order -- 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. This provision apparently applies to law enforcement efforts to determine what websites a person had visited, which 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 provision extends a low standard of proof -- far less than probable cause -- to actual "content" information.
- In allowing for "nationwide service" of pen register and trap and trace orders, the law further marginalizes the role of the judiciary. It authorizes 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 is unable to meaningfully monitor the extent to which her order was being used to access information about Internet communications.
- The Act also grants the FBI broad access in "intelligence" investigations to records about a person maintained by a business. The FBI need only certify to a court that it is conducting an intelligence investigation and that the records it seeks may be relevant. With this new power, the FBI can force a business to turn over a person's educational, medical, financial, mental health and travel records based on a very low standard of proof and without meaningful judicial oversight.
The ACLU noted that the FBI already had broad authority to monitor telephone and Internet communications. Most of the changes 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 provided, 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 had authority to intercept these communications without showing probable cause of crime for "intelligence" purposes under the Foreign Intelligence Surveillance Act. In fact, 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.
The law dramatically expands the use of secret searches. Normally, a person is notified when law enforcement conducts a search. In some cases regarding searches for electronic information, law enforcement authorities can get court permission to delay notification of a search. The USA Patriot Act extends the authority of the government to request "secret searches" to every criminal case. This vast expansion of power goes far beyond anything necessary to conduct terrorism investigations.
The Act also allows for the broad sharing of sensitive information in criminal cases with intelligence agencies, including the CIA, the NSA, the INS and the Secret Service. It permits sharing of sensitive grand jury and wiretap information without judicial review or any safeguards regarding the future use or dissemination of such information.
These information sharing authorizations and mandates effectively put the CIA back in the business of spying on Americans: Once the CIA makes clear the kind of information it seeks, law enforcement agencies can use tools like wiretaps and intelligence searches to provide data to the CIA. In fact, the law specifically gives the Director of Central Intelligence -- who heads the CIA -- the power to identify domestic intelligence requirements.
The law also creates a new crime of "domestic terrorism." The new offense threatens to transform protestors into terrorists if they engage in conduct that "involves acts dangerous to human life." Members of Operation Rescue, the Environmental Liberation Front and Greenpeace, for example, have all engaged in activities that could subject them to prosecution as terrorists. Then, under this law, the dominos begin to fall. Those who provide lodging or other assistance to these "domestic terrorists" could have their homes wiretapped and could be prosecuted.
The USA Patriot Act continues the unfortunate trend of expanding government access to personal financial information rather than safeguarding it against intrusion. While there is certainly a need to shut down the financial resources used to further acts of terrorism, the USA Patriot Act goes beyond its stated goal of combating international terrorism and instead reaches into innocent customers' personal financial transactions.
Under the new law, financial institutions are required to monitor daily financial transactions even more closely and to share information with other federal agencies, including foreign intelligence services such as the CIA. The law also allows law enforcement and intelligence agencies to get easy access to individual credit reports in secret. The law provides for no judicial review and does not mandate that law enforcement give the person whose records are being reviewed any notice.
The USA Patriot Act allows law enforcement officials to cast an even broader net for student information without any particularized suspicion of wrongdoing. When the changes in federal law dealing with student records privacy are combined with other information-sharing provisions contained in the new law, it becomes clear that highly personal student information will be transmitted to many federal agencies in ways likely to harm innocent students' privacy.
Since September 11, law enforcement agencies from all levels of government have faced few barriers in accessing student information. According to the American Association of Collegiate Registrars and Admissions Officers, about 200 colleges and universities have turned over student information to the FBI, INS and other law enforcement officials.
But law enforcement agencies wanted even easier access to a broad range of student information and the USA Patriot Act gave it to them by allowing them to receive the student data collected for the purpose of statistical research under the National Education Statistics Act. The statistics act requires the government to collect a vast amount of identifiable student information and -- until now -- has required it to be held in the strictest confidence without exception.
The USA Patriot Act, however, eliminates that protection and -- while it requires a court order -- allows law enforcement agencies to get access to private student information based on a mere certification that the records are relevant to an investigation. This certification, which a judge cannot challenge, is insufficient to protect the privacy of sensitive information contained in student records.