September 11 Digital Archive: XML Document
Date: Sat, 22 Sep 2001 14:41:06 -0400
To: Sarah Tuft [private],
Subject: FW: The antiterrorism legislation before Congress is dangerous
------ Forwarded Message
Date: Sat, 22 Sep 2001 11:30:49 -0700 (PDT)
Subject: The antiterrorism legislation before Congress is dangerous
Don't Press the Panic Button
The antiterrorism legislation before Congress is dangerous.
By xxx, research director, xxx
September 21, 2001 9:10 a.m.
Congress is being asked to rush to pass emergency antiterrorist
legislation written by the Department of Justice. House Committee
hearings are scheduled for Friday, Senate hearings for Tuesday, and the
DOJ is demanding the bill be enacted by the end of the week. It would
be a serious mistake for Congress leaders to force this legislation
into law without careful scrutiny, because much of the legislation
turns out to have nothing to do with fighting terrorism. Instead, the
legislation contains a host of items which have been on bureaucratic
wish lists for many years.
As we strongly support Attorney General Ashcroft and his staff in
performing their executive-branch duties, Congress must remain faithful
to its own duties, which is to make laws carefully and correctly.
Before voting for any bill - and especially for a bill on a
fast-forward agenda - congressmen have an obligation to read the bill.
When they read the proposed new DOJ bill, they will find much that is
unnecessary, and more that is a serious threat to the Bill of Rights.
For example Section 406 of the bill expands "property" to certain
drug-forfeiture orders. The expansion might or might not be a good
idea, but it has no business being in an emergency terrorism bill.
Also, the bill authorizes secret searches, whereby a person would never
be notified that his property has been searched. This broad provision
applies to alll kinds of searches, not just terrorism searches, and is
simply a retread of a failed proposal from the last Congress.
A much larger set of non-terrorist items can be found in the wiretap
proposals. Currently, federal wiretaps operate under two distinct
statutes. One statute is the Foreign Intelligence Surveillance Act,
enacted in 1978. This law gives broad surveillance powers to the
federal government, and authorizes the issuance of wiretaps by a secret
seven-judge court in Washington, D.C. Antiterrorist wiretaps would fall
under FISA, and the bill does contain several provisions to expand or
There is a separate statute, the Wiretap Act, which is used for
ordinary crimes. (18 US Code, sections 2510-22). This act authorizes
wiretapping for over 100 types of crimes ? ranging from homicide down
to student loan fraud. While FISA wiretaps are extremely secret, the
administrative office of the United States Courts produces an annual
"Wiretap Report" which summarizes statistics about the year's Wiretap
Act surveillance. These reports show conclusively that the Wiretap Act
is almost wholly unrelated to terrorism. While wiretaps are up over
600% since 1980, only about 1 in 500 wiretaps involves homicide or
arson, the primary terrorist offenses. About three-fourths of wiretaps
are for drugs.
It's theoretically possible that a Wiretap Act interception could be
used in a terrorism investigation ? such as a wiretap on an American
citizen suspected of creating false immigration documents. But the DOJ
bill proposes a host of Wiretap Act expansions which are not limited to
terrorism investigations, and which vastly increase the power of the
federal government to conduct surveillance of the reading habits and
correspondence of the American people.
In 1979, five members of the U.S. Supreme Court ruled in Smith v.
Maryland that the federal Constitution does not require the police to
get a warrant in order to place a pen register or a "trap and trace
device" on someone's telephone. A pen register records the numbers
which are dialed by a particular phone; a trap and trace device records
the numbers which call a particular phone. The narrow majority
upholding the warrantless use of these devices explained that devices
were constitutional only because they revealed so little personal
information: They did not disclose the parties who conversed, or the
subject of the conversation, or even whether the call was connected.
A congressional statute formalizes federal use of pen registers, and
requires judges to issue pen-register orders under a "rubber stamp"
standard. The judge must issue the order whenever a U.S. Attorney
requests an order. Pen registers and trap and trace devices are much
more common than wiretaps. Last year, there were about 5,000 such
devices used on Americans by federal law enforcement.
The DOJ bill would expand pen-register/trap-and-trace power to include
surveillance of Internet surfing and of e-mail. (A similar measure was
included in a bill hastily passed by the Senate on September 12, with
hardly any discussion.) This means that the FBI, the BATF, the DEA, the
INS, or any other federal law-enforcement agency could ? without a
search warrant ? survey a citizen's e-mail and his web surfing. The web
surveillance can include every URL that the person visits, and also
includes (by virtue of including URLs created by search engines) the
key words of every search the person submits. The e-mail surveillance
would not include the text of messages, but would include the to/from
information, as well as the subject line of a message, and also the
size of the message.
Such surveillance is far more intrusive that old-fashioned telephonic
pen registers. If you make a telephone call to Arnold & Porter, the pen
register doesn't disclose who you talked to, or how long you talked. In
contrast, e-mail surveillance reveals the particular persons who
communicated. Traditional pen registers, of course, disclose nothing
about a person's reading habits; but URL surveillance can build an
extremely detailed picture of how a person exercises his First
Amendment rights ? and can also disclose a person's sexual orientation,
if he visits erotic websites.
Even though e-mail and web surveillance reveal the intimate details of
a person's thoughts and life, such surveillance is a legitimate tool
for law enforcement ? as long as there is compliance with the Fourth
Amendment's requirement for a warrant based on probable cause. Current
law allows such surveillance based on a search warrant. There is no
need to abandon the warrant requirement, and there is certainly no need
to toss out the warrant rule to allow searches under a statute that has
very little connection with counterterrorism.
If we want to give the federal government vast new surveillance powers
for drug, pornography, and gambling laws, then let us have a full and
open debate on the subject, and not deceive ourselves with the notion
that this expansion is part of fighting terrorism.
Federal laws regulate the federal government, but they usually cannot,
as a practical matter, control foreign governments. Many foreign
governments conduct illegal electronic surveillance of American
citizens, using surveillance facilities housed in embassies and
The DOJ bill would actually reward this practice by allowing the use in
federal courts of surveillance illegally conducted by foreign
governments (Section 105). The foreign governments would even be
protected by the secrecy rules which apply to confidential informants.
What this does is set up a system whereby a foreign government can
violate American laws by wiretapping Americans, while the American
government can violate foreign laws by wiretapping foreigners, and then
both governments collude to share their fruits of their joint
violations of their nations' privacy laws.
The DOJ bill gives the DOJ the power to permanently detain legal aliens
in the United States, in conjunction with a terrorism investigation.
Notably, the only court allowed to review these claims pursuant to a
habeas corpus petition would be the District of Columbia court of
appeals ? so a person detained in Los Angeles would have to file suit
in Washington. Even then, the standard for detention is very low,
requiring only the attorney general's "reasoable belief," a standard
lower than "probable cause," which is needed to issue a search warrant.
The potential for abuse is immense, and no matter how much one trusts
the current staff of the DOJ, this is a power that could be used by
every future attorney general.
The Alien Acts under John Adams and the Palmer Raids under Woodrow
Wilson are only two of the many instances of Department of Justice of
abuses of lawful aliens, carried out under the guise of national
security, but in fact intended to stifle political debate in the United
States. Attorney General Palmer used a series of Washington bombings to
attempt to eradicate what he called the "disease of evil thinking."
When the Department of Justice can imprison an alien for life, the
potential to intimidate political speech is immense. And the American
people, who are entitled to hear the broadest range of political
debate, are the losers.
This extremely dangerous provision would be better with a definite
Indeed, so would the entire bill. This bill is touted as an emergency
wartime measure. We are going to win this war, and we should ensure
that once the war is over, America is just as free as before. We should
not repeat the mistakes of World War I and World War II, in which
wartime emergency powers were allowed to continue into peacetime.
As immigration-reform groups have documented in great detail,
immigration-law enforcement in this country is a joke. There are many
thousands of aliens in this country who arrived in student visas, and
who are no longer students. As with gun laws, properly enforcing the
existing laws ought to precede calls for enacting more laws.
The proposed statute (section 302) allows a life sentence for the
"terrorist offenses" ? which at first blush seems unnecessary, because
life sentences (or sentences of hundreds of years and more) are already
available for homicide and acts of mass arson or bombing.
But when one reads the statute's new definition of "terrorism" (section
309), one sees that minor offenses are suddenly turned into "terrorism"
(with a potential life sentence). The definition of terrorism includes
actual terrorist offenses (e.g., homicide, arson, assassination), but
includes so many other federal crimes that it covers teenagers who
throw rocks through a post office window (18 USC section 1361,
destruction of government property, no matter how little), or
human-rights activists who vandalize the sign outside a dictatorship's
government's office building (18 USC sec. 956, conspiracy to injure
property of a foreign government), as well as many, many other
I am not arguing against punishing people who commit these low-level
crimes, but I am arguing against calling them "terrorists" and
subjecting them to life in prison. No matter how much faith one has
that the Ashcroft DOJ will not abuse this very over-inclusive
definition, Mr. Ashcroft will not be attorney general forever, and the
history of the DOJ ? including under the Janet Reno, John Mitchell, and
Mitchell Palmer regimes ? suggests that almost any power which can be
abused eventually will be abused.
The Center for Democracy and Technology has identified many more
problems with the bill, in addition to the ones detailed in this
article. Plainly, this is a very flawed bill that cannot be fixed with
an amendment or two.
It is very important that our nation have all the powers necessary to
win the war. America's greatest power ? and the reason that the dark
ages tyrants fear and envy us ? is our open society. America did not
panic when the British burned Washington, D.C., to the ground in the
War of 1812, and America must not panic today.
Email Date:Sat, 22 Sep 2001
Email Subject:Subject: FW: The antiterrorism legislation before Congress is dangerous