|SECURITY VS CIVIL RIGHTS?|
How will the new anti-terrorism legislation affect civil rights? Taking your questions are Douglas Kmiec, dean of the Catholic University School of Law; Anthony Romero, executive director of the American Civil Liberties Union; and Loretta Lynch, the former U.S. Attorney for the Eastern District of New York.
Schubert of Mound, MN asks:
I think a good solution would be to grant law enforcement and intelligence communities the power to surveil at their own discretion, but to prohibit their findings from being used as evidence in any case, outside of extremely credible and clear-cut threats to public safety and national security.
Would this be possible -- to allow federal authorities to collect information but not use it against us?
Do any of Congress' provisions grant authorities the power to surveil without charging suspects of other crimes? What if suspects were caught planning non-terrorist crimes? Could the anti-terrorist bill be used against a non-terrorist crime?
Douglas Kmiec responds:
The questioner has raised an important issue and one that is not easily resolved.
When you expand the net to catch terrorists, you inevitably find other law violators along the way. If serious crime is in issue, however, I doubt we would just want investigators to turn their heads. That said, I believe the legislation solves most of these problems by making the new authority requested terrorist specific.
For example, under current law, a federal prosecutor can subpoena third-party business records that are relevant to the investigation of a drug dealer without a court order. 21 U.S.C. § 876.
A U.S. intelligence investigator, however, must prepare a pleading, file it with the special foreign intelligence court, and obtain approval by a special judge to get the subpoena for records from a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility. 50 U.S.C. §§ 1861 & 1862. This extra time and difficulty often outweighs the apparent importance of the records. Thus, U.S. Intelligence officers have sought such a court-issued subpoena only 5 times.
The new legislation would allow U.S. Intelligence officials to issue subpoenas to any third-party business, not just a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility, for records of suspected spies and terrorists without a court order. In other words, the records must be relevant to a foreign intelligence investigation (including international terrorism).
To the extent the proposed anti-terrorism legislation seeks to streamline procedures for electronic surveillance and include cable and the Internet in the existing electronic surveillance laws, the new law will be applicable to all criminal investigations, not just those involving terrorism. Most of the proposed legislation, however, deals with changes to the immigration laws, laws governing foreign intelligence gathering, and changes in definitions and penalties for terrorism.
Law enforcement currently has the power, under the Foreign Intelligence Surveillance Act, to conduct electronic surveillance of persons working on behalf of a foreign power or terrorist organization against the interests of the United States (either spying or planning terrorist activities).
This surveillance can only be conducted to gather information necessary to protect the United States against attack, terrorism or spying or to gather information necessary to national defense.
This information is not gathered for use in court proceedings, but for use by the intelligence community (generally, FBI, CIA, National Security Council, Departments of State and Defense). This power is broad, but not without checks.
Application for electronic surveillance under the FISA must be made to a special seven-judge court; a showing must be made of both the foreign intelligence aspects of the information sought but also why other, less intrusive investigative techniques cannot achieve the same ends.
Some of the proposed changes to FISA would allow the intelligence community to receive foreign intelligence information from criminal investigations, and, where surveillance had already been authorized, continue to intercept the target as they switched locations or phones to elude surveillance.
If FISA targets were surveilled engaging in other criminal activity, that did not involve their work for a foreign power, the intelligence community would try to prevent the crime without alerting the targets to the surveillance. If law enforcement were to independently uncover the "non-terrorist" crime and seek to prosecute, they would rely upon traditional law enforcement surveillance and investigation, and not the FISA information.
Thus, the intelligence community does have the ability to gather information on terrorism that will not be used in court. This authority is not solely at their discretion, however, but within the framework of protecting our national interests, and can be used only upon a showing that those interests are at stake.
Unfettered surveillance by law enforcement, totally at their discretion, has not been requested under the proposed legislation, nor would it be appropriate. To shift to the standard proposed in the question - unlimited surveillance with a prohibition on use as evidence except in cases of a threat to public safety and national security - would be logistically and judicially unworkable.
In a criminal investigation, initiation of surveillance must be based upon a clear and present need for information, and is an important tool in building a case for prosecution. From its initiation, law enforcement works to ensure its admissibility in court.
In the national security context, even though no court proceeding is envisioned, the balance between privacy and a compelling governmental need for surveillance must still be struck. Objective standards mean that every application is reviewed under those same standards. Moreover, having those standards imposed from the beginning of surveillance means the objective must be clear from the start. It avoids what could be endless litigation over the sufficiency of the level of threat, as well as "after the fact" justifications for surveillance. The agencies can go about their work knowing they are acting within the constitutional and statutory framework.
Mr. Schuber's solution of total government freedom to spy on American citizens might increase our protection against terrorists - but at the cost of our liberty and our way of life.
Government surveillance of Americans is problematic not only because it violates courtroom rules of evidence and is "unfair" to criminal wrongdoers. It is bad because no one can be a truly free and full human being without a zone of privacy. Most people feel self-conscious and behave differently when they know they are being watched. We do things in private - when we are with our close friends and family - that we would never do if we knew we were being watched by people who don't know us well.
In addition, even information that is not used in a courtroom can be used against us, as our history has shown. Former FBI director J. Edgar Hoover, for example, waged a campaign of surveillance against almost a million law-abiding American citizens who he suspected of "subversive" or "un-American" activities, and sometimes used that information for political blackmail.
Our government is made up of human beings, and if we grant the power to spy without rules and judicial oversight, that power will inevitably be abused.