LCHR Rebuts Attorney General’s Speech on USA PATRIOT ACT

Attorney General John Ashcroft is currently undertaking a multi-city tour across the United States to discuss the Bush Administration’s war on terror with a particular focus on the effects of the USA PATRIOT Act.

In this media alert, Lawyers Committee for Human Rights staff attorneys respond to the points in the Attorney General’s speech.

Read the full text of the Attorney General’s speech

Attorney General’s Statement: Attorney General Ashcroft contends that the PATRIOT Act “tear[s] down the walls that cut off communication between intelligence and law enforcement officials” before September 11.

Reality: There was no “wall” between intelligence and law enforcement officials precluding information sharing before the PATRIOT Act was passed. The Foreign Intelligence Surveillance Act (FISA) of 1978 lowered the standards for obtaining foreign intelligence wiretaps—making these wiretaps easier to get than those used in ordinary criminal investigations. To prevent abuse of the lower standard, courts and the Department of Justice erected a filter (often inappropriately referred to as a “wall”) between those conducting domestic law enforcement and foreign intelligence operations.

The distinction between filter and wall is real: the filter did not prevent intelligence officials from sharing FISA wiretap information about criminal activity with domestic law enforcement; indeed, intelligence officials provided monthly briefings to law enforcement officers on all counterintelligence investigations involving evidence of significant federal crimes. The filter simply required that raw FISA intercepts be screened so that only the information that might provide relevant evidence was passed on to criminal prosecutors. It also prevented law enforcement from directing intelligence officials to use FISA warrants to obtain information that it would be barred from obtaining itself due to insufficient evidence to support a Fourth Amendment search warrant.

Attorney General Ashcroft has interpreted Section 218 of the USA PATRIOT Act to remove the filter entirely. This creates a danger of abuse without addressing the institutional “culture” that has kept intelligence and law enforcement communities from sharing information they have long been encouraged to share.

Statement: Attorney General Ashcroft encourages Americans to take a few minutes and log on to a new website to read about the PATRIOT Act and read what members of Congress have said about it.

Reality: Americans should check out the new government website. But if they’re using a computer at their local library, university, or internet cafe, they should be very careful about visiting any other sites. Sections 215 and 505 of the PATRIOT Act allow the FBI to secretly access personal information about Americans (including library, medical, education, internet, television, and financial records) without demonstrating that the target is involved in espionage or terrorism. Prior to the PATRIOT Act, personal records could only be accessed by the FBI if there were “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” The PATRIOT Act dropped this requirement of individualized suspicion.

Statement: Attorney General Ashcroft says his efforts have been supported by Republicans and Democrats in Congress.

Reality: Even members of Congress most closely identified with the administration have expressed unease at the Attorney General’s constant quest for new powers. When the Attorney General unilaterally lifted restrictions on FBI spying, for example, Representative James Sensenbrenner (R-WI) remarked, “I get very, very queasy when federal law enforcement is effectively…going back to the bad old days when the FBI was spying on people like Martin Luther King.” The Justice Department’s plans for the TIPS program elicited the following response from Senator Orrin Hatch (R-UT): “We don’t want to see a 1984 Orwellian-type situation here, where neighbors are reporting on neighbors.” In response to the leaked draft of the Patriot II proposals, former Representative Bob Barr (R-GA) remarked that the USA PATRIOT Act had asked for “all sorts of powers far beyond what any normal person would deem necessary to fight terrorist acts. They got an awful lot of what they asked for. Now, just a year and a half later—without the opportunity to even digest the enormous powers they got in the PATRIOT Act—apparently they’re getting ready to draft another bill to get more powers that go far beyond what was in the PATRIOT Act.” Meanwhile, in July 2003, the House of Representatives voted to prevent the Justice Department from funding one of the PATRIOT Act powers, the use of “sneak-and-peek” warrants. These warrants allow law enforcement officials to covertly search through private property while the owner is away and then further delay notification of the search. The amendment, adopted by a vote of 309-118, was proposed by Representative Butch Otter (R-ID).

Statement: Attorney General Ashcroft boasts that the DOJ’s efforts have been ratified by the courts in legal challenge after legal challenge.

Reality: Legal challenges against the PATRIOT Act itself are only now beginning. A review of other post-September 11 cases reveals a deep unease among judges with the executive’s attempts to stretch its anti-terrorism powers. In May 2002, the secret FISA Court complained that government agents, including the FBI Director, had repeatedly misled the court in order to circumvent the filter between criminal and intelligence operations. In March 2003, the federal district judge hearing the Zacarias Moussaoui case rejected the executive’s attempt to deny the defendant access to a potentially exculpatory witness in U.S. custody saying that she found strong reason to believe that the witness might provide “material favorable testimony on the defendant’s behalf - both as to guilt and potential punishment.” In March 2003, a district court hearing the Jose Padilla “enemy combatant” case rejected the executive’s arguments that the court had no need to hear from Mr. Padilla, himself (or to permit him to consult with counsel). The executive had asserted that the only facts relevant to a judicial review of Mr. Padilla’s detention were the facts the executive itself decided to present.

Statement: Attorney General Ashcroft claims that the Justice Department has neutralized alleged terrorist cells in Buffalo, Detroit, and Seattle and Portland.

Reality: There are indications that the Justice Department has been overstating the evidence in these cases and that it has been using the threat of “enemy combatant” status to induce the defendants to plead guilty. In the Buffalo case, for example, the federal prosecutor confirmed that investigators have found no evidence suggesting that any of the six U.S. citizen defendants was involved in a violent plot. An attorney for one of the men said his client “decided to plead guilty after prosecutors suggested that [he] could be declared an enemy combatant and be held indefinitely without a lawyer, or be charged with treason and face execution.” Another of the defense attorneys remarked, “As often is the case with federal plea negotiations, the government has some pretty potent weapons in its arsenal, but in this case those weapons were the prosecutors’ version of nuclear warheads.”

Statement: Attorney General Ashcroft credits the PATRIOT Act with producing a “seamless anti-terror team with international law enforcement and intelligence agencies.”

Reality: The international community has vigorously condemned - and refused to cooperate with - core U.S. counterterrorism strategies of relying on extra-legal systems of indefinite detention. For example, about 680 detainees are now housed at the U.S. Naval Base in Guantanamo Bay, Cuba - including nationals from 40 or more countries, speaking 17 different languages. (Four are children, the youngest aged 13.) The British government has advanced “strong reservations about the military commission” planned for some of the detainees, and some 200 Members of Parliament signed a petition calling for repatriation of the British detainees for trial in the United Kingdom. Spain announced that it would provide no assistance to any case to be tried in a military commission. And in response to reports that the U.S. intended to provide special treatment for U.K. and Australian defendants brought before military commissions, an Egyptian commentator noted that exempting British and Australian suspects from the death penalty invites accusations of “selective justice,” and “risk[s] further condemnation on an already sensitive issue.”