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September 25, 2000

The Honorable Richard C. Shelby
Chairman
Senate Select Committee on Intelligence
211 Hart Senate Office Bldg.
Washington, D.C. 20510

The Honorable Richard H. Bryan
Vice Chairman
Senate Select Committee on Intelligence
211 Hart Senate Office Bldg.
Washington, D.C. 20510

Dear Mr. Chairman and Mr. Vice Chairman:

We are writing to express our opposition to the "Counterterrorism Act of 2000," which we understand Senators Kyl and Feinstein are seeking to add to the intelligence authorization bill. At least three provisions of the Act pose grave threats to constitutional rights, and others raise serious questions as well.

Section 10

Section 10 of the Counterterrorism Act would amend the federal wiretap statute ("Title III") to allow law enforcement agencies conducting wiretaps within the United States to share information obtained from such surveillance with the intelligence agencies. The provision breaches the well-established and constitutionally vital line between law enforcement and intelligence activities. The provision has no meaningful limitations. It allows the CIA and other intelligence agencies to acquire, index, use and disseminate information collected within the US about American citizens. It is not subject to any meaningful judicial controls.

Efforts have been underway for a number of years to improve the sharing of information between law enforcement and intelligence agencies, particularly in areas concerning terrorism and trans-national criminal activity. Significant improvements have been achieved. However, it has been recognized consistently in all these efforts that the fundamental distinction between intelligence and law enforcement serves important values and must be maintained.

Paramount among the reasons why we distinguish between law enforcement and intelligence agencies, and confine them to their separate spheres, is to protect civil and constitutional rights. The intelligence agencies operate in secret without many of the checks and balances, the judicial review and the public accountability that our Constitution demands for most exercises of government power. The secretive data gathering, storage and retention practices of the intelligence agencies are appropriate only when conducted overseas for national defense and foreign policy purposes and only when directed against people who are not US citizens or permanent residents.

Therefore, we have always maintained strict rules against intelligence agency activities in the US or directed against US citizens and residents. From the outset, the National Security Act of 1947 has specifically provided that the Central Intelligence Agency shall "have no police, subpoena or law enforcement powers or internal security functions." This was intended to prevent the CIA from collecting information on Americans. Likewise, the National Security Agency has very strict rules about the collection or dissemination of information concerning Americans.

This prohibition against intelligence agencies collecting and disseminating information about people in the US would be rendered meaningless if the FBI could give personally identifiable information about US citizens to the CIA or NSA, which then could retain the information in files retrievable by name. Yet that is what the proposed amendment does. The proposed amendment contains no meaningful limitations. It does not say that the information to be shared can relate only to non-US persons. It does not say that the information could be kept by the receiving intelligence agencies only in non-personally retrievable form (a restriction that increasingly loses meaning anyhow as agencies develop the capability to search the full text of their files).

Moreover, this breach would involve one of the most intrusive of law enforcement techniques - electronic interception of telephone conversations, e-mail and other electronic communications. In recognition of the especially intrusive nature of wiretapping, section 2.4 of E.O. 12333 expressly states that the CIA is not authorized to conduct electronic surveillance within the United States. All Title III interceptions take place in the US. The overwhelming majority of targets of law enforcement wiretapping are US persons. In this information age, when so much sensitive personal information is exchanged electronically, the American public is increasingly concerned about the breadth and intrusiveness of government wiretapping.

The problems posed by the proposed Section 10 are compounded by the secrecy with which the intelligence agencies operate. There is little likelihood that a person who was the subject of a file at the CIA would ever learn about it, and even less likelihood that they would ever learn that information in the file was obtained by a law enforcement wiretap. So there would be little opportunity for uncovering abuses and little recourse to the judiciary for misuse of the information.

The provision stands in fundamental contradiction to the specificity and minimization requirements of Title III, which are central to the privacy protection scheme of that law. The minimization rule requires every wiretap to be "conducted in such a way as to minimize the interception of communications not otherwise subject to interception" under Title III. 18 USC 2518(5). Every order under Title III must include "a particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates." 18 USC 2518(4)(c). Together, these provisions make it illegal to intercept under Title III communications that do not relate to a criminal offense. Yet the proposed amendment would seem to mean either that officials conducting Title III wiretaps would be intercepting communications involving foreign intelligence that is not relevant to crimes in the US or the CIA would be compiling information about crimes, including crimes inside the US, in violation of the National Security Act.

Section 9

Section 9 of the Counterterrorism Act of 2000 also threatens to erase the dividing line between law enforcement and intelligence agencies that protects individuals in the US against secret domestic intelligence activity. Section 9 would require the Director of the FBI to submit to Congress a report on the feasibility of establishing within the Bureau a comprehensive intelligence reporting function having the responsibility for disseminating to the intelligence agencies information collected and assembled by the FBI on international terrorism and other national security matters.

But Section 9 calls for far more than an objective study. It requires the FBI to submit a proposal for such an information sharing function, including a budget, an implementation proposal and a discussion of the legal restrictions associated with disseminating law enforcement information to the intelligence agencies. This is putting the cart before the horse. With the emphasis in recent years on cooperation between the FBI and the CIA, the factual predicate has not been established for even concluding that the FBI is not already properly sharing intelligence information. Further, only recently the FBI adopted a strategy that stresses intelligence collection and analysis - it would be prudent first to examine the effectiveness and civil liberties implications of that strategy before directing the FBI to design a new intelligence sharing mechanism. Then it would be prudent to draw distinctions among the various types of information that the FBI is collecting, to ensure that information sharing does not infringe on the rights of Americans and does not involve the intelligence agencies in domestic law enforcement matters. All of these nuances are missing from Section 9. All of them could be accomplished by the relevant Congressional committees in a neutral and objective fashion without the need for this amendment.

The provision does not draw a distinction between information collected by the FBI under its counterintelligence authority and information collected by the Bureau in criminal matters. While there are overlaps between foreign intelligence and criminal investigations, especially in international terrorism matters, there are nonetheless important and long-standing rules intended to enforce the distinction. Since the period of COINTELPRO and the Church Committee, it has been recognized that the rights of Americans are better protected (and the FBI may be more effective) when international terrorism and national security investigations are conducted under the rules for criminal investigations. Section 9 is flawed for failing to recognize this distinction and seeming to encourage its obliteration.

Section 11

Section 11 of the bill is essentially a direction to the Executive Branch to be more aggressive in investigating "terrorist fundraising" of an undefined nature. Fundraising to support violent activities is properly a crime. But in the 1996 Antiterrorism and Effective Death Penalty Act, Congress also made it a crime to support the legal, peaceful political activities of groups that the Executive Branch designates as terrorist organizations. The 1996 Act was supposed to allow the government to respond to fundraising in the US on behalf of terrorist groups. At the time, opponents of the law argued that there was no evidence that extensive fundraising of this nature occurred and worried that the law would be used as an excuse to launch intimidating investigations into the political activities of Arab immigrants and other ethnic communities. We opposed the 1996 Act on the ground that it unconstitutionally criminalized support activities that were protected under the First Amendment. The proposed amendment to the intelligence authorization bill reaches even more broadly than the 1996 Act.

Section 11 of the bill essentially tells the Executive Branch to go out and punish fundraising conduct where little or none has been found. The recent case of Wen Ho Lee highlights the dangers of Congress telling the Executive Branch to be more aggressive in investigating and prosecuting a particular crime. The last time something like this happened was in the 1980s, when some in Congress urged the FBI to be more aggressive in investigating what they believed to be a Communist-supported conspiracy in the US to support terrorism in El Salvador. The resulting "CISPES" investigation intruded on the First Amendment rights of thousands of Americans peacefully opposed to US policy in Central America, turned up no evidence of wrongdoing, and proved a major embarrassment for the FBI. This danger is exacerbated by the proposed amendment, which encourages the Executive Branch to use civil and administrative remedies, including the tax laws, that are not subject to the protections of criminal due process. It is further exacerbated since the amendment encourages the commingling of criminal information and intelligence information collected with the most intrusive of techniques and such secrecy that the targets of any adverse action may have a hard time defending themselves.

* * *

We also have concerns with other sections of the proposed amendment: (1) Section 6, concerning the guidelines on recruitment of CIA informants, implicitly questions the historical lessons and value judgments reflected in the guidelines and is clearly intended to be seen as a signal from Congress that the CIA should be freer in recruiting informants who are human rights abusers. This practice has embarrassed our country in the past and would embarrass us again if the practice were renewed, undercutting American foreign policy support for the rule of law and our efforts to discourage and resolve violence in emerging democracies and other transitional societies. (2) Section 12 would require HHS to take "actions" to make standards for the physical protection and security of biological pathogens "as rigorous as the current standards" for critical nuclear materials." The questions posed by the threat of biological weapons require a far more carefully designed policy than a blanket direction to establish for "biological pathogens" the same protections that apply to critical nuclear materials. Take the case of West Nile virus, or the AIDS virus. Are these "biological pathogens?" Does section 12 mean that all medical research and all medical facilities handling research and treatment of the West Nile or AIDS viruses must institute the security clearance checks, polygraphs, and pre-publication review requirements (all of which raise serious constitutional due process, privacy and civil liberties concerns) that apply to workers at nuclear weapons facilities?

* * *

For these reasons, we urge you to oppose the addition of the Counterterrorism Act to the intelligence authorization bill.

Respectfully,

Laura W. Murphy
Director
American Civil Liberties Union, Washington National Office
(202) 544-1681

James X. Dempsey
Senior Staff Counsel
Center for Democracy and Technology
(202) 637-9800

Kate Martin
Executive Director
Center for National Security Studies
(202) 994-7060

cc: Members of the Senate Intelligence Committee
The Hon. Orrin G. Hatch
The Hon. Patrick J. Leahy




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