ACLU Briefing: Unnecessary Powers

This is the first of 7 briefing papers about the USA PATRIOT Act published by the ACLU. They can by found at <>.

One week after the terrorist attacks of September 11, 2001, Attorney General Ashcroft transmitted to Congress an omnibus antiterrorism proposal and demanded that it be enacted within three days. In addition to expanded wiretap authority, the Justice Department asked for new authority for government agents to detain suspicious immigrants indefinitely and without charge, and to obtain financial and other records without probable cause. The Justice Department also sought to lower barriers that restricted involvement of intelligence agencies in domestic law enforcement, and to expand its powers to compel forfeiture of a suspect’s assets.

Several weeks later, in the midst of the anthrax scare, a near-paralyzed Congress passed the 342-page USA Patriot Act, with little debate and virtually no dissent. Most members of Congress had no access to their offices and no opportunity to read the bill. Critiques provided by the ACLU and other groups were ignored. Some members of Congress had argued for a sunset provision, under which the law would expire in several years. In the end, the bill was passed with a sunset clause that applies to only a handful of the eavesdropping sections in one part of a 10-part bill. Once the USA Patriot Act passed, the executive branch used its rulemaking authority to assume even more new powers, without any congressional consideration or approval.

Even during times of crisis, new government powers that infringe upon civil liberties should bear some relation to the nature of the threat they are designed to counter. Before obtaining new powers, government officials should be required to show that (1) the new power is necessary to thwart future attacks; and (2) the benefit of the new power outweighs its adverse effect on liberty. Because Congress did not demand such showings from the Bush Administration, important individual freedoms have been sacrificed needlessly and unjustifiably.

In the first weeks after 9/11, it was widely assumed that our intelligence agencies had been denied the use of investigative tools that could have provided warning of terrorist plans. The USA Patriot Act, in fact, reflects that assumption. But it is becoming increasingly clear that the government’s failure to prevent the attacks was not due to a lack of authority to obtain information through surveillance and searches, but rather due to the government’s failure to analyze and act on the information it already had. Although there still has not been a full inquiry (largely because of the Administration’s resistance), we do know the following:

Evidence of Pre-existing FBI Problems

The FBI’s “Director’s Report on Terrorism,” completed in spring 2001, did not call for relaxing legal constraints on the FBI’s scope of authority, but rather focused on inadequacies in personnel, organization, computer quality, and analytic capabilities. On September 10, 2001, Ashcroft rejected an FBI request for an additional $58 million to fund counterterrorism efforts. There are also indications that the FBI failed to make effective use of legal tools it already had. On May 24, 2002, in response to an FOIA lawsuit filed by the Electronic Privacy Information Center, the FBI released a confidential memorandum sent by a Justice Department official to an FBI lawyer in April 2000. The memo voiced concern about mistakes made by the FBI’s International Terrorism Operations Section, and in particular, by that Section’s (UBL) Osama Bin Laden Unit: “You have a pattern of occurrences indicating an inability on the part of the FBI to manage its FISAs [foreign intelligence surveillance operations].” One well-publicized episode revealed that an FBI agent had prevented Minneapolis agents from obtaining a warrant to search Zacarias Moussaoui’s computer just a month before 9/11. This, apparently, was not an isolated incident.

Evidence of Pre-existing INS Problems

The Immigration and Naturalization Service has also shown ineptitude in using its already considerable powers. We now know that two of the 9/11 highjackers were on FBI watch lists of suspected terrorists, yet they were able to enter the country and remain undetected. In March 2002 the media reported that the INS had wrongly issued visa waivers for four Pakistanis who arrived in the US on a Russian merchant ship and quickly disappeared.

Strategy Based on Ethnic Profiling is a Proven Failure

An investigative strategy based on racial, religious and ethnic profiling has failed to make us any safer. After more than a year of dragnet arrests, preventive detentions, “voluntary” interviews and mandated “registration” of non-citizens, only one person has been charged in connection with 9/11. On October 11, 2001 a group of senior US intelligence specialists sent a memo to law enforcement agencies warning that looking for someone who fits a profile is not as useful as looking for someone who behaves in a suspicious manner. In fact, the memo suggested that over reliance on profiles is detrimental because “any profile based on personal characteristics… draws an investigator’s attention toward too many innocent people, and away from too many dangerous ones.”
“September 11th Opportunism”

It is not widely understood that investigative powers largely or totally unrelated to terrorism were slipped into the counterterrorism package and won approval without the careful scrutiny that legislation involving conventional law enforcement would normally face. These new powers were clearly not necessary, and Prof. Stephen Schulhofer of NYU Law School has called the phenomenon “September 11 opportunism.” Examples include new authority to investigate routine criminal cases by monitoring e-mail and Internet activity without probable cause, searching private premises secretly without notice to the owner, and exercising broad foreign intelligence powers even when there is no substantial counterterrorism or foreign intelligence purpose.

ACLU, “Insatiable Appetite: The Government’s Demand for New and Unnecessary Powers After September 11” Oct. 2002 (Revised, April 2003)
Stephen J. Schulhofer, The Enemy Within, (Century Foundation 2002); D. Goldberg, V. Goldberg, R. Greenwald (ed.)
It’s a Free Country: Personal Freedom in America After September 11 ( RDV Books 2002)
“USA Patriot Act” (Pub. Law 107-56) <>.