316 Pennsylvania Ave., SE, Suite 203
Washington, D.C. 20003
(202) 544-0353; fax (202) 547-6996
October 2, 2001
Dear Member of Congress,
On September 11, terrorists attacked the heart of America. The nation
mourns the loss and still fears future attacks. We support the Bush
Administration’s effort to find and hold accountable the perpetrators of
these heinous acts. Yet, Congress must act deliberately and carefully
when considering legislation that could infringe on our freedoms and
LIBERTY AND SECURITY
We can have security and civil liberties in a time of crisis. The
Fourth Amendment is one of our most precious constitutional rights, and
we will not hand it over to the terrorists. Proposals that give the
federal government unprecedented police power to snoop and spy on
law-abiding citizens must be rejected. We do not want an American
society where everyone is treated as a terrorist, money launderer, drug
trafficker, or criminal. Only totalitarian regimes monitor the private
actions of law-abiding citizens.
All the criminals who participated in the terrible acts of terrorism on
September 11 were aliens who should not have been allowed in the United
States. We should enforce our immigration laws already on the law books
instead of cracking down on the freedoms of law-abiding citizens.
Terrorism is not a domestic problem if we have border security.
ANALYSIS OF ANTI-TERRORISM PROPOSAL
Clearly, adjustments to the law are necessary to fight terrorism. The
anti-terrorism proposal submitted by the Administration contains
numerous provisions that bring the law into the 21st century,
recognizing the existence of cellular phones, the Internet, and e-mail.
However, recognizing that bad ideas before are still bad ideas now,
several sections have appeared before and were shelved because they
crossed the line of freedom. Therefore, several sections must be
rejected outright, while others amended.
Based on the September 19th draft anti-terrorism proposal, we recommend
that the following sections be rejected entirely:
We recommend that the following sections be amended:
- Section 105 (Use of wiretap information from foreign governments):
Because foreign governments do not have to follow the Fourth Amendment
and other U.S. laws when spying on U.S. citizens, such information would
not be permissible currently because it was illegally obtained. This
section drastically changes current law because it would permit the use
of evidence obtained by a foreign government wiretap. Furthermore, the
NSA cannot spy on American citizens, but that does not stop foreign
governments from spying and then exchanging information with U.S.
intelligence officials. (Note: Project Echelon)
- Section 156 (Business records): This section is too broad, lacks
judicial review, and applies to U.S. citizens as well as aliens.
- Section 158 (Disclosure of educational records): This section amends
the Family Educational Rights and Privacy Act (FERPA) by permitting
Department of Justice broad access to educational records for students
in kindergarten through college. We are particularly troubled by the
low standard of access: “so doing can reasonably be expected to assist
in investigating or preventing a Federal terrorism offense . . .” FERPA
already permits disclosure to comply with a judicial order or lawfully
issued subpoena. Fishing expeditions into student records, which may
also contain personal medical information, are unacceptable.
Furthermore, there is no distinction made between records of U.S.
citizens and aliens.
- Section 352 (Notice): Because there are split decisions among Circuit
courts regarding the delay of notice of search warrants, it would be
inappropriate to include this section in the legislation.
- Section 406 (Restraint of property subject to criminal forfeiture)
- Section 505 (Assistance to countries cooperating against international
terrorism): Cooperation with other countries around the world is
necessary to track down terrorists. However, these countries should not
receive our tax dollars as a reward just for cooperating. Rewarding
countries such as Sudan would be inconsistent foreign policy based on
their current record of slavery, religious cleansing, and persecution.
- Title I - Intelligence Gathering
Subtitle A - Electronic Surveillance
- Section 101 (Modification of Authorities relating to use of pen
registers and trap and trace devices): This provision extends the use
of pen register and trap and trace orders to the Internet and gives a
Federal Judge the jurisdiction to issue an order that is valid anywhere
within the United States. Congress should expressly state that the
information to be obtained cannot include any content of the
communication, including subject lines.
- Section 103 (Authorized disclosure): The definition of “investigative
and law enforcement officer” should not include every federal government
employee in the Executive Branch. It should be narrowed to include only
the President, Vice President, law enforcement officials, and national
security and intelligence personnel in connection with performing
- Section 106 (Interception of computer trespassers communications):
This section states that anyone accessing a computer “without
authorization” has no privacy rights and can be tapped by the government
without a court order, if the operator of the computer system approves.
And Internet Service Provider (ISP) “terms of service” agreement could
then be used as a license to intercept e-mail without court order. A
better approach would be to allow ISPs to seek government assistance
when systems have been commandeered by a hacker.
- Section 108 (Nationwide service of search warrants for electronic
evidence): This provision would allow law enforcement to seek a search
warrant for electronic communications before any judge in the country
with arguable jurisdiction over an investigation. This section is not
limited to terrorism but applicable to any person or organization that
has become an investigatory target. The current language must be
narrowed to terrorism cases or at least tightened to prevent abuse.
Subtitle B - Foreign Intelligence Surveillance and Other Information
- Section 152 (Multi-point authority): This section would allow the
government to compel a common carrier, landlord, custodian or other
person not specified in a court order to provide information and
assistance with electronic surveillance if a “court finds that the
actions of the target of the application may have the effect of
thwarting the identification of a specific person.” Thus, as a suspect
moves from place to place, the government can expand its demands to
every person or organization the suspect comes in contact with, without
the nicety of judicial review or consent. Conservatives and civil
libertarians fought a heated battle over a similar effort in the 1996
terrorism bill. The section has become no less offensive over time.
- Section 153 (Foreign intelligence information): This section allows
the government to initiate wiretaps in criminal investigations under the
weaker standards permitted for foreign intelligence taps, thereby
circumventing the relatively stricter provisions of the wiretap law.
The section is especially problematic because it applies to U.S.
citizens as well as aliens, and is not limited to terrorism cases. The
real issue in this section is to ensure consultation between
intelligence agents and criminal investigators, which would not threaten
the foundation of FISA. Therefore, a better approach would be to amend
FISA to expressly state that consultation between the foreign
intelligence/counterintelligence agents and criminal prosecutors does
not deprive an intelligence tap of its primary purpose.
- Section 154 (Foreign intelligence information sharing): This section
would allow grand jury and electronic information, obtained during a
criminal investigation, to be shared freely with “ANY federal law
enforcement-, intelligence-, protective-, or national-defense personnel,
or [with] any federal personnel responsible for administering the
immigration laws of the United States.” Because this list could include
thousands of government employees, this section should be amended to
require that “intelligence-sharers” receiving the information are
conducting an active investigation which is relevant to the information.
- Section 155 (Pen register and trap and trace authority): Pen
registers and trap and trace authority in regard to FISA was changed in
1998. Currently, the target must have or be engaged in international
terrorism that may violate U.S. criminal law or must be an agent of a
foreign power. Because this section lowers the standard for a FISA pen
register and trap and trace, it should not apply to U.S. citizens.
- Section 157 (Miscellaneous national-security authorities): Consumer
Credit Protection standards are lowered by this section. Currently, the
target must be a foreign power, a person who is not a United States
person, and an official of a foreign power; or an agent of a foreign
power who has or is engaging in international terrorism that may violate
U.S. criminal law. The language in the statute (15 U.S.C 1681(u)) should
be maintained. Alternatively, any changes aiming to lower the standard
for access to consumer credit records, in the name of
counterintelligence, should not apply to U.S. citizens.
- Title III - Criminal Justice
Subtitle A - Substantive Criminal Law
- Section 309 (Definition): This provision defines the term “Federal
terrorism offense.” Other provisions of the bill provide for prosecution
without time limitation and increased penalties for those involved in
illegal conduct that meets this definition. The proposal defines the
term “Federal terrorism offense” as “the violation of, or an attempt or
conspiracy to violate” and then lists approximately 27 existing crimes.
The most troublesome aspect of this definition is that it includes
crimes that common sense tells us are not terrorist acts. Some of the
offenses listed relate to injury to buildings or property over and under
$1,000, violence against maritime navigation, conspiracy to injure
property of a foreign government, arson, simple assault on a member of
Congress and protection of computers. The prospect of prosecutors
bringing terrorism charges against some one who defaces a government
building or engages in common computer hacking should, at the very
least, call this provision into question.
Congress should consider either limiting the offenses that constitute
the definition of a “federal terrorism offense” to only those crimes
which common sense dictates is a terrorist act or if all the crimes are
to remain include a terrorist mens rea as an element of the crime.
Unfortunately, the inclusion of Section 351, Title 18, in the list of
terrorism predicates might make PETA a terrorist organization because
one of its members hit the Secretary of Agriculture with a pie.
Similarly, an organization defending the Second Amendment might become a
terrorist organization under predicates like sections 956 and 1361
because one of its members, in connection with a sports shooting event,
shot at a stop sign owned by our government or the government of a
Suggested improvements for this language:
Regardless, the definition of federal terrorism is too broad and must
- Incorporate the “intent test” contained in the definition of
“international terrorism” in section 2331 of Title 18, or
- Require a showing of over $10,000 in intended damages or an intent to
cause death or serious bodily injury.
Subtitle B - Criminal Procedure
- Section 354 (Grand jury matters): Grand Jury information is currently
protected. This section aims to permit the information to be shared with
a broad range of U.S. officials. The list should be shortened to U.S.
law enforcement and intelligence personnel. Furthermore, it should only
apply to terrorism cases and court approval should be required before
the release of any grand jury information.
Title IV - Financial Infrastructure
- Section 403 (Assets of terrorist organizations): The section is too
broad, and its impact largely depends upon the definition of federal
terrorism (Section 309).
- Section 405 (Disclosure of tax information in terrorism and
national-security investigations): Disclosure of tax records is already
granted on an emergency basis, and it is unclear why that is
insufficient. This section should be tightened so that the requested
records are relevant to the investigation being conducted by the
America has never experienced such unbelievable terrorist acts on U.S.
soil, and we have assurance under the President’s leadership that
justice will be brought to all perpetrators involved in these heinous
acts. However even in this time of a national crisis, our Constitutional
rights must not be sacrificed. We look forward working with you and the
Administration legislation drafted in response to September 11.