Memorandum from the ACLU Regarding “Patriot Act II”

March 1, 2003

FROM: Sanjeev Bery, ACLU Organizer/Advocate, ACLU of Northern California, 1663 Mission Street, Suite 460, San Francisco, CA 94103; phone (415) 621-2493; fax (415) 255-1478

TO: Brian Willson

SENT: Tuesday, March 18, 2003, 11:08 AM

In passing the USA PATRIOT Act (PATRIOT Act I), Congress expanded the powers of the government to spy on individuals, reduce the oversight of such activities, and ultimately increase the secrecy with which the Justice Department operates. The Domestic Security Enhancement Act of 2003 (PATRIOT Act II) threatens to fundamentally alter the constitutional protections that allow us as Americans to be both safe and free. This is totally different from S. 22.

There are many egregious provisions in the bill that will affect every one of us. Among them are:

The destruction of the Fourth Amendment: Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch and without judicial review. Patriot II is an unprecedented assault that would roll back years of protections gained after the FBI and CIA had, in the past, conducted massive surveillance of individual and groups engaged in lawful protest and speech.

Increased power of a secret court: Under PATRIOT Act I, the Foreign Intelligence Surveillance Act (FISA) was expanded to allow secret searches where foreign intelligence gathering was merely a "significant purpose. PATRIOT Act II would remove any distinction between "foreign" and "domestic" surveillance to include "unaffiliated individuals" and all persons, regardless of whether they are affiliated with an international terrorist group. (Section 101).

Library surveillance: Section 215 of PATRIOT Act I authorizes the FBI to order the production of "any tangible things" (including books, records, papers, documents, and other items). The FBI can now require a library to produce records showing who has borrowed a particular book; require a bookstore to produce purchasing records; require an internet service provider to reveal who has visited a particular web site; require a magazine to disclose its list of subscribers; or require the ACLU to disclose its list of members. Section 215 might also be used to obtain material that implicates privacy interests, such as medical records, other than those protected by the First Amendment. Under PATRIOT Act II these same loose standards would be expanded and apply to investigations of wholly domestic crimes. For example, time allowed for electronic surveillance would be extended; it will be easier to initiate surveillance and wiretapping of U.S. citizens; American citizens can be wiretapped of for up to 15 days without court order and at the sole discretion of the Attorney General under certain circumstances; law enforcement officers who initiate surveillance without judicial approval, a power that would be greatly expanded under Patriot II, would never be accountable should they violate anyone’s constitutional rights.

Loss of citizenship: The bill would allow the government to strip citizenship from any American who provides support for a group designated by the federal government as a "terrorist organization" (section 501). It would not be required that the person knew or intended his/her actions were to support a terrorist group. Under this provision an innocent donation to an overseas orphanage that the Attorney General believes is affiliated with a "terrorist" organization could result in loss of citizenship.

Secret detentions: The bill would give statutory authority to allow secret arrests in immigration and other cases where the detained person is not criminally charged. There is no time limit as to how long a person could be secretly detained. It would also include a provision that would prohibit federal litigation challenging any detention and even disclosure of basic information about such detainees. (Section 201 and 405).

This provision is in direct response to the successful ACLU litigation that sought to acquire the names of those being held in New Jersey jails in November 2001.

Expanded use of the death penalty: The bill dramatically expands the death penalty, creating fifteen separate new death penalty crimes including a conviction as a "domestic terrorist." Under the law, if an anti-war protestor broke the law during a demonstration and someone died as a result, the protestor could be subject to the death penalty and the protest organizers with domestic terrorism. (Section 411).

Lawful residents deported without a hearing: The bill would allow the INS to conduct summary deportations, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503).

Government spying on lawful political demonstrations: Federal and state court orders that had placed limits on police spying on community activists would be immediately cancelled. (Section 312).

Secret access to credit reports without consent: The law would expand access to credit reports by authorized the government to obtain there reports without consent, notice to the person to whom the credit report pertains, and without a court order. The consequences of an erroneous credit report are far more serious than when credit reports are used for business purposes since there is no opportunity for the person to contest an erroneous report.

Creation of a DNA database of "suspected terrorists": The bill would create a DNA database of individuals who are suspected of association with terrorism or terrorist groups. The Attorney General could designate persons who have neither been charged nor convicted of any crime as "suspected terrorists" and require the "voluntary" taking of a DNA sample. Failure to comply with the "voluntary" request is a crime.

The public will be denied access to environmental reports – Communities and environmental organizations seeking to protect public health and safety and the environment will not have access to critical information concerning risks to the community. The Clean Air Act, for example, requires corporations that use potentially dangerous chemicals to prepare a "worst case scenarios" analysis to surrounding communities. Such information helps ensure compliance by private corporations with environmental and health standards and alerts local residents to potential hazards. Access will be restricted to reading rooms only; –copies could not be made and notes could not be taken, and the reports would be excised of the very information required. Significantly, a government official who reveals any information restricted under this section commits a criminal offense, even if their motivation was to protect the public from an inherently dangerous environmental hazard, corporate wrongdoing or government neglect.

The larger implications of the bill include a severe diminishment of basic checks and balances on the power of the executive branch, as well as untested and likely ineffective security measures that infringe on basic liberties — especially personal privacy and the freedoms of speech, association and religion.

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