FlashPoint #4: CEI Dispatch on Anti-Terrorism and Civil Liberties

Singleton Dispatch on Terrorism and Civil Liberties

This is the fourth in a series of commentaries the Competitive Enterprise Institute will issue on anti-terror measures in the wake of the recent terrorist attacks on America.  Our hope is that the Senate will work as effectively as did the House to identify effective anti-terror measures consistent with the American tradition of constitutional government.

Stop!  These proposals get a red light.

Such proposals represent a critical threat to civil liberties or just plain bad policy.  At the very least, these measures should be detached from “fast-tracked” anti-terror measures for full hearings.

Sections 301-363, all provisions concerning money laundering.  These anti-money laundering proposals present a drastic reversal of intelligent U.S. policy on tax competition and low-tax nations. Allowing these proposals to pass will harm to banks in the United States and abroad. It is not wrong for a nation to attract foreign investors to its shores by keeping taxes low or by protecting client’s confidentiality.  Indeed, this is why much foreign investment is attracted to the United States. The money laundering proposals confuse the issues of low taxes, bank secrecy, and tax avoidance with questions of money laundering and terrorism. These are not the same thing. Tax competition is healthy.  Terrorism is not.  Switzerland has been more successful than most other jurisdictions in actually catching money launderers—and also has a strong tradition of bank secrecy.

Confining habeas corpus review of terrorist detentions to District of Columbia courts: Section 235A of the “Anti-Terrorism Act of 2001.”  There is no strong reason to remove the power to make habeas corpus rulings concerning the detention of terrorists the exclusive jurisdiction of the District of Columbia.  Such a decision is likely to result in a decline in the quality of judicial discourse concerning the vital right of habeas corpus.   While this would be more convenient for law enforcement, it would be a hardship for defendants to arrange travel to D.C. and hire additional D.C. counsel in addition to his local attorney.  A habeas proceeding takes place after the suspect has been detained.  This provision is therefore of limited relevance to preventing terrorist attacks by improving law enforcement’s investigative powers.  And it raises the issue of forum shopping.  Do law enforcement officials perhaps think they will receive more favorable decisions in the D.C. Courts?

Section 806, including offering “expert advice or assistance” to terrorist as a criminal act.  Does this include an unknowing lawyer advising a terrorist client?  A doctor treating a terrorist unbeknownst to him?

Section 809, redefining the federal crime of terrorism.  The Senate should follow the House in ensuring that any such redefinitions do not include ordinary crimes, but instead are limited to those where there is a threat of serious injury and an attempt to influence or retaliate against U.S. government police.  Even this qualification may be overbroad in some instances.

Any expansion of forfeiture powers, particularly expanding forfeiture powers against assets not traced to the crime as in Section 403 of the PATRIOT Act, formerly Section 406 of the “Anti-Terrorism Act of 2001.”  Law enforcement already has the authority to seize terrorist assets without trial. They are now demanding expanded power to seize assets without trial for any alleged crime. This tempts police to enrich themselves through forfeiture by planting evidence.  It also may prevent alleged terrorists from defending themselves in court by depriving them of funds necessary to hire an attorney.  Innocent parties who are wrongly accused rarely, if ever, get their assets back.  A nationwide rule granting a judge the power to freeze the assets of suspects awaiting trial prevents suspects from fleeing without the threat of corruption.

Section 814.  Inclusion of Act of Terrorism under RICO.  The forfeiture provisions of RICO have been seriously abused.  Allowing law enforcement to seize and keep suspect’s assets without trial is the equivalent of paying police by commission per arrest.  It invites corruption.

Caution: These proposals get a yellow light!

A proposal gets a yellow light if it represents a significant departure from current surveillance practice, especially if there is reason to question that it would improve our security from terrorists

Section 106 of the U.S.A. Act, expands Presidential authority to seize property of persons within the United States after a foreign attack on the U.S., even when war has not been declared.

Section 2703, expanding law enforcement power to require electronic communications service providers to disclose customer records.  This provision seems suspect under the Fourth Amendment’s restrictions on searches and seizures without probable cause.

Section 214 (see also Section 216), allowing Internet message traffic to be traced without a warrant, or any legal or technical requirement that the message content be segregated from the other packets.  This should not and is unlikely to pass constitutional muster.

Section 215, empowering the Director of the FBI to demand production of business records in the course of an investigation of terrorism.  This is inconsistent with the Fourth Amendment preventing searches and seizures without a showing of probable cause.

Section 218, expanding the authority of FISA investigators to use FISA procedures when intelligence is “a significant” purpose of the investigation as opposed to “the purpose” of the investigation.  As an expansion of the power of a secret court, this proposal should be questioned.

Sections 219 and 220, allowing the issuance of single-jurisdiction warrants for terrorism.  This would allow police to get a single federal warrant for searches that take them to multiple jurisdictions, rather than multiple warrants across every jurisdiction.  The warrant would be issued by the district judge where the terrorist act occurred.  And if the warrant is issued in New York but someone wishes to challenge in California (for example, a non-suspect whose phone is under roving wiretap), the objection should  move forward in a California court.  The courts can rightly be expected to take a close look at whether any courts may issue a warrant while lacking jurisdiction over the property on which a search or wiretap would be conducted.  This analysis also applies to requests for nationwide “pen register” orders or wiretaps.

Section 221, allowing expanded trade sanctions against Afghanistan.  Trade sanctions hurt innocent civilians more than offensive governing regimes.  Their expanded use is likely to backfire.

Section 815, adding to the list of crimes actions including computer crimes that would have caused a loss “to 1 or more persons . . . aggregating at least $5000 in value.”  This seems overbroad and not to have anything necessarily to do with terrorism.  Care should be taken to ensure that some 14 year old hacker does not have his life ruined by such provisions.

These proposals get a green light.

A “green light” doesn’t mean “pass the law without reading it,” or without question.  Proposals that get a green light may in our judgment be passed on fast-track without posing a critical threat to limited government.

Section 101 of the USA Act, establishing a counter-terrorism fund.

Section 102, condemning discrimination against Arab and Muslim Americans.

Section 103, increased funding for FBI Technical Support Center.

Section 105, expanding national network to investigate electronic crimes.

Section 202, expanding authority to intercept electronic communications relating to felony violations of computer fraud and abuse laws. 

Section 203, giving intelligence investigators greater access to grand jury information.

Section 204, clarifying law regarding permissible disclosures of communications in intelligence investigations to include electronic communications (i.e. Internet messaging).

Section 204, authorizing the FBI to hire translators.

Section 206, expanding the use of roving wiretaps under FISA.  Note that the courts will take a close look at this provision.

Section 207, increasing the duration of a FSA wiretap from 40 days to 120 days.

Section 208, increasing the number of judges hearing FISA cases.

Section 209, allowing the seizure of voice-mail messages pursuant to warrant.

Section 210, expanding the scope of information that may be obtained by subpoena from electronic communications service providers to include credit card numbers, among other items.

Section 211, clarifying the duties of cable television operators to reveal records under investigation.

Section 212, allowing ISPs to disclose electronic communications to protect life and limb.

Section 213, expanding power to delay notice of a warrant.

Section 217, authorizing the owner of a computer system to authorize the interception of electronic message traffic by a trespasser on that system, provided the trespasser does not have a contractual relationship with the trespasser.

Section 222, assuring that the new bill would not alter the application of CALEA.

Sections 413, 501-509, 611-624, 711-805, 816-908.