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USA: ACLU "bitterly disappointed" at new anti-terrorism legislation

28 March 2012

The American Civil Liberties Union says it is "bitterly disappointed with the passage of anti-terrorism legislation, which mirrored closely the highly controversial original legislative proposals the Administration submitted to the House of Representatives and the Senate." (press release 12 October 2001)

"This bill has simply missed the mark of maximizing security and, at the same time, minimizing any adverse effects on America's freedoms," said Laura W. Murphy, Director of the ACLU Washington National Office. "Most Americans do not recognize that Congress has just passed a bill that would give the government expanded power to invade our privacy, imprison people without due process and punish dissent."

According to the ACLU, the most troubling provisions in both the Senate and the modified House anti-terrorism legislation now include:

Permits Information Sharing

Allows information obtained during criminal investigations to be distributed to the CIA, NSA, INS, Secret Service and military, without judicial review, and with no limits as to how these agencies can use the information once they have it.

Authorizes "Sneak and Peek Searches"

Authorizes expanded use of covert searches for any criminal investigation, thus allowing the government to enter your home, office or other private place and conduct a search, take photographs, and download your computer files without notifying you until later.

Allows Forum Shopping

Law enforcement can apply for warrants in any court in any jurisdiction where it is conducting an investigation for a search anywhere in the country. This would make it very difficult for individuals subjected to searches to challenge the warrant.

Creates New Crime of Domestic Terrorism

Creates an entirely new type of crime, which is unnecessary for the prosecution of the "War on Terrorism." By expanding the definition of terrorism in such a way, the bill could potentially allow the government to levy heavy penalties for relatively minor offenses, including political protests.

Allows the CIA to Spy on Americans

Gives the Director of Central Intelligence the power to manage the gathering of intelligence in America and mandate the disclosure of information obtained by the FBI about terrorism in general - even if it is about law-abiding American citizens - to the CIA.

Imposes Indefinite Detention

Permits authorities to indefinitely detain non-citizens, without meaningful judicial review.

Reduces Privacy in Student Records

Allows law enforcement to access, use and disseminate highly personal information about American and foreign students.

Expands Wiretap Authority

Minimizes judicial supervision of law enforcement wiretap authority in several ways, including: permitting law enforcement to obtain the equivalent of "blank" warrants in the physical world; authorizing intelligence wiretaps that need not specify the phone to be tapped or require that only the target's conversations be eavesdropped upon; and allowing the FBI to use its "intelligence" authority to circumvent the judicial review of the probable cause requirement of the Fourth Amendment.

Background

Late Thursday night, the Senate passed the so-called USA Act of 2001 (S. 1510) 96 to 1 with very little debate. Sen. Russ Feingold (D-WI) was the only Senator to vote against the bill. He also introduced three amendments - all of which were defeated by his colleagues - that would have fixed several of the bill's more glaring problems. Murphy praised Sen. Feingold for his "courageous attempt to protect American liberties."

This morning, the House GOP leadership substituted legislative language which matched closely both the Senate bill and the Administration's anti-terrorism package. It replaced the language of the PATRIOT Act, a bill that had undergone significant revision in the House Judiciary Committee to protect civil liberties. The new legislative language was agreed to in the wee hours of Friday morning and its substitution passed by a very thin margin after minimal debate.

Before final passage, the modified PATRIOT Act (HR 2975) was met by robust opposition on the floor by House Democrats but, nevertheless, was finally ratified by a vote of 337 to 79, with 3 Republicans voting against and 129 Democrats voting in favor.

It is as yet unclear whether the Senate and House will have to negotiate a compromise between their respective bills in conference. Given the similarities between the bills, the Senate may take up the House bill, making a conference unnecessary and "therefore forestalling any real opportunity to make a bad bill better," Murphy said. It is possible that the legislation could reach the President's desk as early as next week.

Pressure from the White House and the Department of Justice on Congress to quickly pass an anti-terrorism bill modeled closely on the Administration's proposals has been increasingly fierce over the past several days. The Washington Post criticized the Administration in an October 3rd editorial: "Attorney General John Ashcroft continues implicitly to flog Congress for engaging in the balancing act that should have been his responsibility but that he skipped past. He warns of the possibility of further terrorist activity, which we have no doubt is real. The implication is that if it occurs it will be partly the fault of those who insist on modifying this bill."

"In rushing through its legislation, the Administration has undercut any attempt at good faith negotiation with Democrats, the American public and even members of its own party," Murphy said. "If the bill does go to conference, we urge lawmakers to reestablish in the bill the proper balance between the requirements of safety and the necessity of liberty," Murphy added.

See the ACLU website: ACLU