August 22, 2003
Mayor Michael Kasperzak
City Hall
City of Mountain View
500 Castro Street
Mountain View, CA
Dear Mayor Kasperzak:
A few weeks ago I was asked to provide some pro bono advice
about how the City of Mountain View (i.e., the City) might be impacted by the
federal “USA Patriot” Act (referred throughout as USAPA or the Act).1 In this letter I chronicle the results of my analysis. My
work was greatly assisted by the following staff of the City of Mountain View:
Joanne Pasternack of the City Manager’s Office, City Attorney Michael Martello,
Police Chief Scott Vermeer, City Librarian Karen Burnett, and Director of
Finance and Administration Bob Locke and his staff. I thank Human Relations
Commissioner Bill Bien for initially contacting me about this project. I am
also grateful for the assistance of Margaret Russell of the University of Santa
Clara Law School.
The contents of this letter are as follows. After providing
a summary of the analysis, I discuss the methods I used to conduct the study. I
then provide a brief overview of USAPA, followed by the analysis of how certain
provisions of the Act affect the City of Mountain View. Finally, I discuss some
of the City’s options for dealing with USAPA.
I. SUMMARY
USAPA creates major, and sometimes questionable, changes in
federal law. Although a lot has been written about the dramatic scope of these
changes, commentators have said little about how the Act affects local
jurisdictions like Mountain View. To address that specific question, I focus on
a few of the major legal changes made by USAPA. I group these changes into
three different categories: (1) changes that could have a direct impact on City
government; (2) changes that could have an indirect impact on City government
as a result of affecting City residents; and (3) characteristics of the Act
that exacerbate the larger problem of trying to gauge USAPA’s full
impact.
* The Act can
have a direct impact on the City in two major ways.
* The City’s
Police Department may be asked to support practices that are constitutionally
troubling, such as those involving USAPA powers for federal investigators to
conduct secret searches where the target is not served with a warrant or
otherwise notified. Although existing law already allows for such delayed
notification searches in a few narrow circumstances, USAPA cuts out most
judicial oversight of these secret searches and allows for substantial delays
in notifying targets of the searches. Federal law enforcement investigators
have no obligation to tell the City whether they are using powers granted in
USAPA or whether they are conducting an ordinary law enforcement operation. The
City police therefore cannot judge in advance whether they are providing
support to an operation that raises concerns.
* The Act makes
it easier for the federal government to compel the City or its departments –
such as the library -- to provide access to records, property, or any other
“tangible things.” Judicial review is minimal. The City’s information can also
be obtained from its information technology services contractors, who may
either be compelled or convinced voluntarily to turn over information without
the City being able to stop it.
* The Act can
have an indirect effect on City government through its impact on certain
residents of the City. Specifically, the expanded scope of criminal, and
immigration, liability and surveillance may chill free association and free
speech. For example, if non-citizen residents of the City know that they can be
deported for expressive conduct (i.e., merely what they say or what
organizations they join), this may have an effect on the things they choose to
say or the groups they choose to join. They may not even want to get close to
the line out of an abundance of caution, especially given the greater scope of
surveillance that the law makes possible.
* Beyond
this, much of the Act embodies an egregious trend away from judicial review in
counter-terrorism law. The trend combines substantial changes in the scope of
federal power with a rollback of judicial review and no other means of
evaluating long-term impact on the inhabitants of a local jurisdiction or the
entire nation. Legislative and outside efforts to obtain information on how
investigators and prosecutors are using the Act have met with limited success.
The City has three major options to deal with USAPA. The
first is to pass a resolution against USAPA as a whole. The second option
involves targeted opposition to certain portions of USAPA. The third option is
to maintain the status quo. The first approach recognizes that specific
sections of the law have an unwelcome effect on the City, and also that much of
the Act embodies larger trends that the City could find troubling. In contrast,
the second approach gives the City an opportunity to recognize that it finds
some USAPA sections more problematic, and others less so. Either of these can
be combined with additional provisions trying to mitigate the practical impact
of USAPA on the City. For example, the Council could direct the City Police not
to play a supporting role in secret searches. City contractors could be
requested not to release information voluntarily to the government. The City
might also request periodic information from the federal government regarding
its use of USAPA powers in the City of Mountain View, though the federal
government might refuse to disclose such information.
Finally, the City could choose the third option of accepting
the status quo. Whatever support there is for this option, it would be difficult
to support it with the argument that the Act is of no consequence to the City.
USAPA has an impact on the City in the ways I have described above. The
question is how the City chooses to respond.
II. METHODOLOGY
My goal was to think about how major provisions of USAPA
might have an effect on the day-to-day activities of the City, its employees,
and its residents. To do this, I conducted a legal analysis of USAPA and
related laws. I also conducted a series of interviews with staff and officers
of the City, including the City Attorney, Chief of Police, the Director of the
Library, staff from the City Manager’s Office, and City officials and
contractors responsible for information technology.
Though I did not approach this project with a specific recommendation
in mind, I did start from a few basic premises gleaned from my work as a legal
scholar and my past work as a government lawyer. The following principles
shaped my ideas about what provisions in the Act were especially important, and
what sort of interest a local jurisdiction might have in federal legislation.
* Expansive
changes in laws used to punish people and constrain freedom should be carefully
scrutinized, especially when they give the federal government the power to
potentially disrupt the exercise of constitutional rights. USAPA affects a
number constitutional values implicated in the Fourth Amendment right to be
free from unreasonable searches and seizures,2
the Fifth Amendment right to due process of law (particularly for immigrants),
and the First Amendment right to freedom of _expression. Laws used to punish
people can be especially problematic for freedom if they heighten the
probability of punishment on account of someone’s decision to engage in
expressive conduct. Moreover, even beyond the question of whether punitive
changes in the law are constitutional, such enforcement changes can have
far-reaching, unintended, and potentially perverse consequences.3
* The City’s
residents have a privacy interest worth safeguarding. That interest is not
infinite, nor should it be. But major derogations of privacy should be
carefully justified before being accepted. Thus, one might desire such careful
justification if a law makes it much easier for federal investigators to know
what community groups are meeting in a city library, who is using library
computers to access the website of the ACLU of Northern California, or who is
sending city officials messages with subject lines expressing concern about
USAPA.
* A local
jurisdiction that faces a risk of being required to disclose information it
would prefer not to disclose, or that may face requests to take part in
constitutionally troubling conduct, can be said to be “directly affected” by a
change in federal law. It is worth bearing in mind that local governments may
face some financial costs in responding to federal document requests, defending
against them in some cases, and responding to concerns about such requests.
Moreover, under certain circumstances a local government can be liable for constitutional
torts. Even if they can escape liability through legal formalisms (i.e.,
qualified immunity), the City may want to avoid taking part in constitutionally
questionable conduct.
·
Changes in surveillance and in
liability for immigration or criminal offenses can be especially troubling when
the new legal authorities interact with each other. For example, new federal
powers to obtain library or email records, or to get wiretap authority, may not
be as big a deal if the government cannot punish people for expressive
decisions. Those new powers may raise more troubling civil liberties issues if
they are used alongside broadened statutes that let the government punish
someone because of expressive decisions.
·
* Great power
should be subjected to accountability either through judicial review,
disclosure of information, or a similar method. Deviations from this principle
may occasionally prove necessary, but they are troubling nonetheless. An
important constitutional value is that substantial power must also be checked
substantially.4
USAPA advances the trend in the opposite direction.
III. OVERVIEW OF USAPA
USAPA represents one of the most significant changes in
federal law enforcement in decades. The Act is not a single change in the law;
it is a package of dozens of changes in different federal statutes. In some
cases, federal law enforcement officials had been seeking many of the changes
in the bill for years before the changes were enacted in USAPA. The law affects
nearly every aspect of federal law enforcement investigative activity, as well
as banking regulation, immigration laws, and the definition of substantive
offenses. This makes it difficult to summarize the law. Instead this section
provides a discussion of the law’s justification, as well as some of the major
changes the law makes in surveillance and investigative methods, financial
regulation and related criminal laws, immigration law, and the substantive
scope of crimes like providing material support to terrorism. Supporters of
USAPA have justified it on the basis of a broad goal of advancing the fight
against terrorism by trying to ensure that the lack of legal authority did not
interfere with law enforcement efforts to prevent terrorism.5 Supporters have also implied that the American public
broadly supports the Administration’s anti-terrorism policy.6
There are various reasons why one might be skeptical about
the arguments on behalf of USAPA. Many of the law’s provisions were under
discussion well before September 11, 2001, and were often of particular
interest to prosecutors that did not have primary responsibility for
anti-terrorism enforcement. Moreover, supporters of USAPA, including the
Attorney General and the Justice Department, have only occasionally attempted
to justify the law’s provisions by referring to specific instances related to
September 11 or terrorism in general where the law would have allegedly made a
difference.7 One might still believe the
anti-terrorism argument, but it would have to be qualified by the admission that
there is little basis to empirically validate the view that USAPA powers can
affect the marginal risk of low-probability, high-cost terrorist attacks.
Instead, support of USAPA seems premised on a sort of “plausibility” principle,
where it is plausible to believe that many of the provisions in the Act have a
law enforcement benefit. But even then, some provisions seem more plausibly
useful than others. Below I draw some distinctions between different portions
of the act.
A.
Changes in the Law of Surveillance and Privacy
The portions of USAPA that have received the most attention
are the changes in the law of government surveillance. The following are a few
major examples of how surveillance law has changed under USAPA.
* Section 218
extends authority to obtain Foreign Intelligence Surveillance Act (FISA)
surveillance orders to situations where foreign intelligence is a “significant
purpose” allowing for massive surveillance authority with few articulable facts
and little judicial review, even if primary purpose is ordinary criminal
enforcement. This allows the federal government to obtain wiretaps or warrants
for searches without probable cause that there is any criminal conduct afoot.
* Section 213
lowers the threshold of judicial supervision for search warrants where the
federal government can have an extended delay in notifying the target of the
search. The government can delay any notice regarding the execution of a search
warrant as long as a judge finds the “possibility” of an “adverse result” from
requiring such notice. Furthermore, even after the search has been completed,
USAPA allows the delay to be extended for an additional period of time with
little judicial supervision.
* Section 215
facilitates federal efforts to obtain business, library, bookstore, or
government records through a FISA order with little judicial review.
Specifically, federal investigators now have the power to obtain records and
other “tangible things” from and about people not suspected of criminal
activity. This power can be used without any showing of probable cause, without
a warrant, and without notice to the target. The FBI or other federal law
enforcement agency need only certify that the records are sought “for an
investigation to protect against international terrorism or clandestine
intelligence activities.” If an investigation using these powers targets a U.S.
citizen or permanent resident, the investigation cannot be conducted solely on
the basis of actions involving freedom of _expression protected by the First
Amendment. This means that, under a fair reading of the statute, nonresident
aliens can be investigated purely for activities involving freedom of
_expression, and even U.S. citizens and permanent residents can be investigated
partially on that basis. People served with orders to produce records under
Section 215 may not disclose that the FBI has sought information.8
* Section 216
allows court orders authorizing trap and trace devices and pen registers (the
equivalent of a secret government “caller-ID” system) to be used to capture
source and addressee information for computer conversations as well as
telephone conversations.
* Section 210
makes it easier to obtain subpoenas for records of electronic communications
from businesses.
* Section 212
makes changes in the legal regulation of voluntary disclosure of records or
electronic communications from information services providers.
B.
Changes in Financial Enforcement
USAPA takes the existing structure of statues, regulations,
and federal investigative strategies targeting criminal financial activity and
expands them substantially. Although the initial focus of legislative interest
in this area was on the link between financial activity and terrorism, the
resulting provisions of USAPA target virtually all financial crime instead of
just terrorist financing. The following are some of the major changes.
* Section 311
authorizes the use of special regulatory measures requiring financial
institutions to take additional due diligence steps when dealing with
jurisdictions, institutions, classes of transactions, or bank account types
that Treasury considers to be of “particular money laundering concern.”
* Section
314(a) allows federal law enforcement to request an individual’s account
information from any financial institution in the country without giving notice
to the individual (and with financial institutions prohibited from notifying
the person whose information is sought), as long as investigators certify that
they have reasonable grounds to believe the person is engaging in terrorism or
money laundering.
* Section
314(b) allows banks to share information about customers considered suspicious,
and to deny banking services to people on the basis of information provided by
other banks or the government simply stating that someone is suspicious.
* Section 326
requires Treasury to institute regulations requiring financial institutions to
develop explicit “know your customer” programs creating minimum standards to
verify the identity of customers opening new accounts.9
C.
Changes in Immigration Law
Virtually all the immigration-related changes expand the
federal government’s power to detain, deport, and otherwise regulate the lives
of immigrants in the United States. Some major examples of the changes include
the following:
* Section 411
makes aliens deportable for soliciting members or funds for, or for providing
material support to, any group designated by the government as “terrorist.”
There is no intent requirement or other defense, which means that a person who
innocently makes a donation of property of any value to a designated
organization can be deported. The definition of “terrorist activity,” which is
the basis for designating an organization as terrorist, extends to any threat
to use a weapon, and “organization” means any group of two or more persons.
This expansive definition therefore includes almost any group ever accused by
the government of involvement in a crime of violence or civil war. It would
encompass, for example, pro-life groups that once threatened abortion clinic
workers, the African National Congress, or the Irish Republican Army.
* Section 411
also bars admission to aliens who “endorse or espouse” terrorist activity, with
terrorist activity subject to the broad definition noted above.
* Section 412
allows the Attorney General to detain aliens without a hearing, and without a
showing that they pose a threat of flight or a threat to national security. The
Attorney General only needs to certify that there are “reasonable grounds” to
believe that the alien is described in various antiterrorism provisions of
immigration law, and the alien is subject to potentially indefinite detention.
Detention is mandatory during removal proceedings, and may continue even after
removal proceedings if it is determined that the alien cannot be removed.
D.
Changes in Substantive Criminal Law
In addition to the changes above, USAPA also achieves
significant expansions in substantive criminal liability. Some of the major
changes in this area include the following.
* Section 803
defines the new offense of “harboring terrorists,” and allows the Justice
Department to proceed with prosecution either in the place where the harboring
occurred or where the underlying act of terrorism committed by the sheltered
terrorist might be prosecuted.10
* Section 805
expands the crime of providing “material support” to terrorists or terrorist
organizations, adding (among other things) the provision of expert advice or
assistance to the types of assistance that may not be provided under 18 U.S.C.
§ 2339A.11
E.
Assessing USAPA as a Whole
Without substantial further discussion, it is difficult to
demonstrate that the problems with USAPA totally eclipse any benefits. What is clear is that some changes probably
help law enforcement without directly placing at risk specific rights or even
constitutional principles, while other changes raise more dramatic questions
about whether the potential loss of privacy or due process is justified by the
corresponding law enforcement benefit.
Let me offer a few examples to illustrate the differences
among sections of USAPA. This list obviously reflects my own views as a legal
scholar a former federal government lawyer, but since advocates of USAPA offer
no data to support their cause, evaluating the law necessarily involves some
judgment calls. The list below is not an exhaustive description of all the
troubling provisions in the Act. It only mentions a few of the most
questionable statutory changes.
* Many of the
surveillance provisions are extremely problematic. The FISA search authority
expansion under Section 213 eviscerates the distinction between domestic
surveillance for foreign intelligence purposes and surveillance for ordinary
criminal enforcement. The existing requirement is only that foreign
intelligence be a significant purpose – not the primary purpose – of a secret
search or wiretap authorized by the FISA court. The evisceration of a
distinction between foreign intelligence and criminal enforcement raises
troubling constitutional issues. Whatever decisions courts have made about
foreign intelligence, they have not held that the same rules apply for foreign
intelligence and criminal investigation. Section 215 is also problematic, since
it may become a tool allowing government to punish people on the basis of their
decision to exercise the right to freedom of _expression.12
* The
immigration provisions are also troubling, particularly Section 412. By
insisting on the power for potentially indefinite detention triggered simply by
a certification of the Attorney General, USAPA implies that the rest of the
government’s authority to detain or deport immigrants is inadequate. This is
difficult to accept: leaving aside anything in Sections 411 or 412 of USAPA,
the government is invested with substantial authority to deport immigrants for
any immigration law violation, including lying on their application for
admission to the United States. The government can also obviously indict an
immigrant who violates criminal law, including (for example) those who
knowingly help fund any criminal activity or who do something as mild as lying
to a federal officer. What the government gets with Section 412 is a way of
holding someone without charge even
if there is no showing they are violating immigration or criminal laws. No one
in the Administration has made a convincing case for this power. Meanwhile,
there is a cost to principles of due process, particularly since the Supreme
Court has ruled that it may be contrary to constitutional due process
guarantees for an alien to be detained indefinitely.13
Then there are provisions that are still somewhat
controversial but may be warranted given legitimate law enforcement needs. In
my view, some of the changes that are somewhat less difficult to justify
include the creation of extraterritorial jurisdiction for various crimes
involving credit card fraud and similar offenses, the creation of some kind of
mechanism to identify the accounts of suspected terrorists or money launderers,14 and the requirement that the executive
branch coordinate the development of a new Foreign Terrorist Asset Tracking
Center. Still other USAPA provisions are basically unimpeachable, either
because they fulfill a specific need that seems more plausible or because
political safeguards may help check the use of these authorities. These include
the requirement that the Justice Department’s inspector general issue a report
to Congress describing civil rights and civil liberties-related complaints, new
authority for the FBI to hire translators, and limited power conferred on
Treasury under Section 311 to impose targeted regulatory “special measures” to
address transactions, systems, or geographic areas of special concern.
IV. IMPACT OF USAPA ON THE CITY OF MOUNTAIN VIEW
A.
Direct Impact
1. The City Police May Be Requested to
Support or Participate in Conduct that is Constitutionally Questionable
Local police in cities comparable to Mountain View in terms
of size, population, demographics, and economic importance sometimes support
the work of federal law enforcement agents. Local police may be asked to
provide information, to offer backup law enforcement coverage during an
operation, or to render assistance in securing locations before a search. The
Mountain View Police Department, for example, receives occasional requests to
provide support for some sort of federal law enforcement effort. At times, such
assistance can be quite valuable to the FBI or other federal law enforcement
agencies, since local police forces tend to know local neighborhoods and
populations far better than federal investigators. In light of the passage of
USAPA, such support may entangle police in constitutionally troubling
activities.
While cooperation between federal and local law enforcement
remains valuable and should certainly continue, the changes made by USAPA
create some complications. When federal investigators request local help, they
have no legal duty to disclose to the agencies whose assistance it is
requesting whether it is planning to use any of the tactics involving
constitutionally troubling USAPA authorities. Indeed, in some cases, federal
law enforcement may have a strong interest in not disclosing what legal
authority it will use, even to fellow law enforcement officers. Thus, in a number
of situations where City police made a decision to assist federal law
enforcement, they could be supporting activities that raise troubling questions
about the extent of encroachment on constitutionally protected rights.15
I have already noted that not all provisions of USAPA are
constitutionally troubling. But some provisions are. The surveillance
provisions probably raise the most troubling constitutional issues applying to
citizens. Consider, for example, some of the USAPA surveillance provisions in
light of the Fourth Amendment’s guarantee of a right to privacy. Section 218 of
USAPA lowers the threshold necessary to obtain a surveillance order under FISA.
That authority is now available where “a significant purpose” is foreign
intelligence. Section 213 makes it substantially easier for federal
investigators to engage in secret searches where the targets are not notified
for an extended period of time. Both the new FISA authority and the so-called
“sneak and peek” authority for secret searches raise some constitutional
problems. For example, the FISA authority is problematic because it blurs the
distinction between permissive constitutional rules designed to apply to
foreign intelligence activities and stricter constitutional requirements
designed to apply to criminal enforcement within the United States.16 Section 213 raises concerns because
the courts have explicitly recognized that knock-and-announce requirements are
part of what establish the basic legality of a search.17 What is at stake is the extent to
which the law safeguards someone’s reasonable expectation of privacy, and
whether the City will support law enforcement activities that weaken such
protections.
In certain circumstances, the City’s participation in and
support of unconstitutional conduct could trigger tort liability.18 It should be noted that when statutes
are constitutionally questionable, it is difficult to predict whether, when,
and to what extent they will be struck down. Federal circuit courts may split
on the issue, and it may be some time before the U.S. Supreme Court grants
certiorari on cases. When it does, the court may use some “saving” statutory
construction to avoid finding the statute unconstitutional. All of this
militates in favor of considering whether a statute offends constitutional
values, and not just whether the Supreme Court would find it constitutional.19
2. The Act Allows the Federal
Government to More Easily Compel Production of City Information with No
Probable Cause and Little Judicial Review, and to Obtain Information from
Contractors Without the City’s Consent
The Act makes it easier for the federal government to compel
the production of records from libraries or other City offices or departments,
creating potentially adverse effects on the privacy of Mountain View residents.
The Act also makes it easier for federal law enforcement officials to either
voluntarily obtain or compel production of information held for the City of
Mountain View by some of its information technology services providers,
creating a potentially adverse effect on the privacy of Mountain View
residents.
For forced disclosure, the relevant provision of the law is
Section 215, which allows federal enforcement officials to compel disclosure of
business records with minimal judicial review. This means that even despite
local laws to the contrary or even state law, the library and other city
departments can be compelled to turn over records to law enforcement. Although
the library has already taken steps to streamline the data it retains, it could
still possess a number of records that could be valuable to law enforcement and
might also have an impact on residents’ privacy interests.20 Penalties for nondisclosure may be
severe,21 and entities whose
records are requested may not inform the person about whom information is being
sought.22
To illustrate the situation for contractors, consider
Section 212 of USAPA. Basically, the law amends 18 U.S.C. § 2702 to make it
easier for a provider of remote computer services to voluntarily divulge
information to law enforcement. If a provider obtains the content of an
electronic communication (i.e., from a City employee to a member of the public
about a parade permit for a Muslim organization) “inadvertently,” that
communication can be voluntarily disclosed to law enforcement if it pertains to
the “commission of the crime.” The question of whether it relates to the
commission of a crime is, in the first instance, a subjective one. In addition,
customer records (though not the content of communications) can be disclosed to
the government if the provider “reasonably believes” that there is an emergency
involving immediate danger of death or serious physical harm to any person. See 18 U.S.C. § 2702(c), as amended.
This applies to information “pertaining to a subscriber.” Thus, the library’s
provider of remote information services for managing Internet access could be
persuaded by the FBI to provide data about the library (i.e., its “subscriber”)
even if the contractor only collects the information incidentally.23 Moreover, there is nothing that stops
the FBI from telling a contractor that an emergency is taking place, and that
the records must be disclosed to protect life or limb. That in turn may help
establish the provider’s protection from liability under the “prohibitions” on
disclosure listed in another provision of Section 2702.
B.
Indirect Impact
The Act May Chill Free _Expression
Because it Expands the Scope of Federal Surveillance, Immigration Liability,
and Criminal Liability
People tend to react to the threat of deportation or
criminal prosecution. Broad changes in surveillance and liability for criminal
or immigration offenses can have an even greater impact when they happen
together. The combination may chill people, including Mountain View residents,
from engaging in free _expression. It would be hard to argue that this dynamic
is of little or no consequence to some Mountain View residents.24
Consider an example applying to Mountain View residents who
are U.S. citizens. Under USAPA, the federal government could prosecute someone
for an attempt to provide material support for terrorism, which could include
providing expert advice to an organization that has been designated as a
terrorist organization.25
Suppose an engineer responds to the request of what appears to be a charitable
organization on how to design an irrigation system. If such advice is
considered “expert” or “assistance” and the organization is considered
“terrorist,” the engineer could be prosecuted for attempting to provide
material support.26
Individuals interested in supporting – through money, advice, or membership --
organizations critical of United States policies might be chilled from doing so
when they consider the expanded scope of the definition of terrorism, and the
lower threshold the federal government has to meet in order to engage in
surveillance.
The situation may be even more troubling for immigrants,
since USAPA’s provisions are designed to explicitly allow someone to be
deported for expressive conduct.27
Thus, if an alien residing in Mountain View decided to become active in a group
affiliated with a national organization that had been itself accused of
materially supporting terrorism (under the new expanded definition of material
support), she could be summarily deported. Under certain circumstances, the
statute also authorizes (and in some cases requires) the Attorney General to
detain her for an extended and perhaps indefinite period of time.28
Indeed, from the perspective of a non-citizen resident of
Mountain View, it may be hard to avoid the feeling that certain speech or other
expressive decisions are risky. The scope of liability that could result in
deportation is greater, so some aliens may just decide to be exceedingly
careful. At the same time there, more authority for secret surveillance and the
consequences of being singled out go beyond mere deportation, since the
government claims ample authority to detain immigrants for an extended period
even if after they can be easily removed to another country.29 Nor is attention to immigrants. Some
groups are getting more attention than others, which means we might expect the
chilling effect to be disproportionately stronger on people from certain
countries with large Muslim populations, where federal investigators claim that
Al-Qaeda might be operating.30
C.
Larger Problems
USAPA represents an approach to terrorism prevention that
limits our ability to measure precisely its effect on City government, its
residents, and the entire nation. Some of these problems are hard to remedy
because of the paucity of data on the marginal benefit of anti-terrorism
policies. Regardless of whether they can be easily remedied, though, the
existence of these problems could bolster an argument for caution about such
changes in the law.
1. The Act Embodies a Trend Away From
Judicial Review
In USAPA’s provisions on surveillance, financial
enforcement, immigration, and expanded criminal liability, the Act embodies a
trend away from judicial review.31
All this is happening in the context of a concern over terrorism that limits
the extent of disclosed information about detainees.32
2. The Act Makes Substantial Changes in
Federal Surveillance and Law Enforcement Authority But Lacks a Built-In
Mechanism for Evaluation
The Act is virtually devoid of any mechanism to evaluate its
effectiveness. The federal government has also been particularly secretive in
handling requests for information under the Freedom of Information Act
regarding the actual uses of USAPA. This creates a potential problem with the
sunset clause in Section 224 applying to some of the Act’s surveillance-related
provisions. Without an evaluation mechanism, there will be no way of evaluating
the Justice Department’s almost certain-to-come insistence that the
surveillance provisions must be extended after December 31, 2005, when they are
scheduled to sunset.
3. The Federal Government Has Been
Reticent in Releasing Information About the Use of the Act to Congress and the
Public
Given the lack of judicial review or a built-in evaluation
mechanism for the Act, the heavy responsibility for evaluating its real-world
impact devolves onto the legislators who passed it and the citizens of the
nation, who must live under the law. Although federal legislators have sought
to obtain information about USAPA since its passage, the Justice Department has
only provided limited data so far. Even the number of times the federal
government has used its new powers to obtain records from businesses ,
libraries, or cities is classified.33
The Department of Homeland Security has provided minimal information on the
immigration aspects of the law. Moreover, requests from outside organizations
and scholars to obtain information have drawn substantial opposition from the
Justice Department.34
V. POSSIBLE RESPONSES FROM THE CITY OF MOUNTAIN VIEW
A.
Opposition to USAPA as a Whole
The City could pass a resolution essentially opposing the
entire Act. This resolution could acknowledge that some sections of the Act are
not problematic, but could describe the entire law as representing problematic
trends away from judicial review or reasoned evaluation. Supposing the City
found USAPA objectionable, it would have some reasonable basis for supporting
such a resolution against the entire Act. The rationale for opposing the entire
law could include a number of arguments.
* Certain
specific provisions of the Act have a direct effect on the government of the
City of Mountain View (i.e., those involving surveillance, contained in Title
II of the legislation).
* Still other
provisions of the Act can have an effect on the City’s residents by chilling
free _expression and complicating cooperation with federal law enforcement (the
combination of provisions contained in Title II, as well as immigration
provisions in Title IV and broadened definitions of crimes contained in Title
VIII).
* USAPA
embodies a trend away from judicial review and devoid of evaluation mechanisms,
making it harder for governments at every level to evaluate its impact.
* Supporters
of the law have sought to bolster the case for it by claiming public support,
which perhaps increases the relevance of the reactions of local governments to
the entire law.
Note that the City’s opposition can be more than symbolic.
Under either this or the option listed below, the City may also wish to
consider additional action addressing the surveillance-related provisions of
USAPA.
* The City
could make periodic requests to the federal government to ascertain, for
example, how many secret searches authorized under Section 213 of USAPA have
been conducted, or how many FISA surveillance orders have been authorized.
* The City could
request that its contractors pledge not engage in voluntary release of any
information involving the City, its employees, or its residents without the
City Council’s approval.
* The City could
ask its contractors not to limit the retention of any information pertaining to
City residents or employees unless the City specifically requests that the
information be retained or it is essential for technical reasons.
B.
Opposition to Selected Provisions of USAPA
The City could pass a resolution objecting to specific
provisions of the Act that are constitutionally troubling, particularly those
that would potentially involve federal law enforcement authorities in
constitutionally questionable conduct within Mountain View city limits, or
those provisions that would make it easier for the federal government to obtain
private information from the City or its contractors. The most problematic
sections are in Title II of the Act. If the City also wanted to recognize the
indirect impact of USAPA on City residents, it could mention additional
sections. This course of action would implicitly recognize that a number of provisions
in USAPA are acceptable, and would tailor the City’s response to those parts of
the law it finds most offensive.
C.
Status Quo
Finally, the City could do nothing and accept the status
quo. Whatever the arguments for this position, I do not think it would be
correct to support this option because one believed that USAPA had no direct
effect on the City of Mountain View. It does have an effect. Moreover, it is
possible to draw a distinction between USAPA and most federal legislation on
the ground that important aspects of USAPA run afoul of important principles to
which a local jurisdiction should be particularly sensitive (i.e., its exposure
to constitutional tort liability, the value of the privacy of its employees and
inhabitants, the scope of the changes).
VI. CONCLUSION
A growing number of local governments in California and
beyond have passed blanket resolutions criticizing USAPA without a detailed
independent analysis of the law’s effects on the local jurisdiction. While this
is understandable given the complexity and shortcomings of the Act, the City of
Mountain View has taken a different approach. Its legislators have sought to
learn more about the Act and its specific effects on the City.
I have tried to help the City Council learn more about some
of the key provisions of the Act and to illustrate how those provisions would
affect the City. Thank you for inviting me to share this perspective with you.
As a resident of this City and a scholar who teaches and writes on the subject,
I am particularly interested in assisting the City on these matters. Please let
me know if I can be of any further assistance.
Sincerely,
Mariano-Florentino Cuéllar
1 United and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act (“USA Patriot Act”) of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
2 Sometimes courts recognize that even ordinary criminal
laws can be coercive and overbroad, so they apply a “rule of lenity” to
construe criminal laws narrowly. See,
e.g., McNally v. United States, 483 U.S. 350, 359-360 (1987).
3 See, e.g., U.S.
Department of Justice, Inspector General’s Report on the Status of Detainees in
the September 11, 2001 Investigation (July 17, 2003), avail. at http://www.house.gov/judiciary_democrats/
dojbrdpatriotrpt71703.pdf
4 See generally Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206 (1953).
5 See, e.g.,
Prepared Remarks of Attorney General John Ashcroft, Senate Judiciary Committee
Hearing: The Terrorist Threat: Working
Together to Protect America (March 4, 2003), avail. at
http://www.usdoj.gov/ag/testimony/2003/030403senatejudiciaryhearing.htm.
6 See, e.g., Viet
D. Dinh, Freedom and Security After
September 11, 25 Harv. J. Law & Pub. Pol. 399 (2002)(discussing the
Justice Department’s decision to pursue a host of anti-terrorism policies,
including those embodied in passage of the Patriot Act, because “…[w]ithout
confidence in the safety of their persons and the security of their Nation,
Americans will not be able to go about doing those ordinary things that make
America an extraordinary nation”).
7 On June 5, 2003, the Attorney General testified before the
House Judiciary Committee in defense of the Patriot Act. His testimony about
the usefulness of the Patriot Act during the hearing is emblematic:
The “Buffalo Cell” case shows how the PATRIOT Act and the
criminal process can drive intelligence gathering. There, we learned of
information about individuals who allegedly trained in an al Qaeda camp in
Afghanistan and lived in the United States. The Department used confidential
informants to gather facts; we used subpoenas to collect travel information to
track their movements; we deployed surveillance to record conversations; we
used search warrants to locate weapons and jihad materials; and we used some of
the best interrogators from the FBI to obtain critical admissions from some of
the defendants. The Department also used one of the most effective tools at the
government’s disposal – the leverage of criminal charge and long prison
sentences. As is often the case with criminal defendants, when individuals
realize that they face a long prison term like those under the PATRIOT Act,
they will try to cut their prison time by pleading guilty and cooperating the
government.
Testimony of Attorney General John Ashcroft, U.S. House of
Representatives, Committee on the Judiciary (June 5, 2003), avail. at http://www.usdoj.gov/ag/testimony/2003/060503aghouseremarks.htm.
What is striking about the Attorney General’s testimony is how none of it
explicitly states what sections (if any) of the Act allowed investigators and
prosecutors to successfully obtain pleas from the “Buffalo Cell” defendants.
One is left to wonder if the surveillance provisions in Title II were used (there
is no way to tell from the testimony whether they were). If anything, the
Attorney General’s reference to subpoenas suggests that the prosecutors may
have been using at least some ordinary powers rather than the provisions of
Section 215 of the Patriot Act which allow investigators to dispense with
subpoenas. Even if it were clear that
the surveillance provisions were used, there is no indication that the FBI and
Justice Department prosecutors would not be able to bring the case in the
absence of such authority. The most direct implication one can draw from the
Attorney General’s testimony is that the Patriot Act’s increase of penalties
for certain criminal violations may have had an effect on the defendants. These
penalty increases can be best described as a fairly minor change made by the
Act, since in most cases penalties for the offenses in question were already
quite high (i.e., under Section 810, providing material support for terrorism
is now punishable by up to fifteen years in prison instead of ten years). One
might easily question the Attorney General’s implication that such an increase
in existing sentences makes a dramatic marginal difference in defendants’
incentives to plead guilty or provide information.
8 Specifically, Section 215 says that “[n]o person shall
disclose to any other person (other than those persons necessary to produce the
tangible things under this section) that the Federal Bureau of Investigation
has sought or obtained tangible things under this Section.”
9 The details of the requirements may vary depending on the
type of financial institution involved. Treasury has issued rules covering
depository institutions. Rules for non-depository institutions will be released
shortly. See Customer Identification
Programs for Banks, Savings Associations, Credit Unions, and Certain
Non-Federally Regulated Banks, 68 Fed Reg. 25090 (May 9, 2003)(to be codified
at 31 C.F.R. pt. 103 et al.).
10 While the new criminal offense of harboring terrorists
does not seem objectionable, the jurisdictional provision may run afoul of the
constitution. See U.S. Const. Art II
§ 2, cl.3 (“The trial of all crimes… shall be held in the state where the said
crimes shall have been committed…”); Amend. IV (“In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall have been committed….”).
This implies the trial should take place where the crime of “harboring”
occurred.
11 The statute does not define what it means to provide
“expert advice” or “assistance” to terrorists, raising a possible First
Amendment vagueness problem. See,
e.g., Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137-1136 (9th Cir.
2000).
12 See, e.g.,
Press Release, Conyers Supports Lawsuit Challenging Constitutionality of the
Patriot Act (July 30, 2003), avail at. http://www.house.gov/judiciary_democrats/aclupatriotlawsuitpr73003.pdf.
Note that while Section 215 says that investigations of citizens or permanent
residents may not be conducted purely on the basis of their exercise of free
_expression, an investigation can
proceed against them if it is justified on a combination of their free _expression and something else, such as
the unsubstantiated allegations of neighbors or coworkers.
13 See Zadvydas v.
Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprisonment -- from government
custody, detention or other forms of physical restraint -- lies at the heart of
the liberty that [the due process] Clause protects.” ). Extended detention without
a hearing to determine the validity of charges against someone may offend due
process. At a bare minimum, due process requires some kind of notice and some
kind of opportunity to be heard before a person can be deprived of liberty.
Mathews v. Eldridge, 424 U.S. 319, 348-49 (“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’”) (quoting Armstrong v. Manzo, 380 U.S. 545 (1965)); Goss
v. Lopez, 419 U.S. 565, 579 (1975) (due process requires, “[a]t the very
minimum” that a person being deprived of liberty “be given some kind of notice
and afforded some kind of hearing”).
14 Elsewhere I have written about how sometimes the
statutory provisions of the Act are not problematic, but the implementing
regulations are more difficult to justify. In the case of Section 314(a), which
creates the system for identifying the accounts of suspected terrorists or
launderers, part of the problem is the absence of a remedy for most government
violations that one could imagine. Another problem is that federal agents need
not show any sort of articulable suspicion before obtaining private banking
information. See Mariano-Florentino
Cuéllar, Notice, Comment, and the
Regulatory State: A Case Study from the USA PATRIOT Act, 28 Admin &
Reg. Law News 3 (2003).
15 For example, the FBI recently requested the assistance of
city police departments in Santa Clara County to interview individuals in the
United States that had arrived from certain countries where investigators
believed Al-Qaeda to be operating. A number of commentators have criticized
this tactic both for its questionable law enforcement value and for its
violation of the spirit of equal protection. See Mariano-Florentino Cuéllar, Choosing
Anti-Terror Targets by National Origin and Race, 6 Harv. Latino L. Rev ___
(2003)(forthcoming). Local police in Santa Clara County decided not to
participate. Not every federal law enforcement request for help would allow
local police to see its controversial qualities so readily.
16 See, e.g.,
United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980). The
response of the Justice Department to differentiating criminal enforcement from
domestic foreign intelligence gathering has been to establish prophylactic
measures through statutes and investigative guidelines creating a separation
between intelligence-gathering for national security purposes and for criminal
enforcement. While not every aspect of this prophylactic approach necessarily
reflects the full extent of the constitutional protections, the Justice
Department’s response was motivated by the clear recognition that the
constitutional protections applying to criminal enforcement within the United
States are different from those applying to activities involving foreign
national security threats. Note that constitutional criminal procedure
protections appear to apply to citizens as well as non-citizens within the
United States. See United States v.
Verdugo-Urquidez, 513 U.S. 1114 (1995).
17 See Wilson v.
Arkansas, 514 U.S. 927, 932 n.2 (1995)(applying the common law knock and
announce principle to its Fourth Amendment reasonableness inquiry).
18 The most directly-relevant statutory provision is 42
U.S.C. § 1983, which provides in relevant part that a person who:
under color of any statute… subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress.
19 Indeed, some scholars have explicitly called for a
broader debate at all levels of government about whether particular laws and
policies are constitutional. See,
e.g., Mark Tushnet, Taking the Constitution Away from the Courts (1999).
20 Note also that even if the information obtained by
federal law enforcement did not, strictly speaking, offend privacy interests,
it could still create problems of chilling free _expression by potentially
subjecting people to either prosecution or deportation under broadly-worded
provisions of USAPA simply because they come to the attention of federal law
enforcement given the information they obtained through the use of another part
of USAPA.
21 See USAPA
Section 215.
22 See id.
23 To continue the example, the FBI could then use the
information to determine whether it considered that users of the Mountain View
library were engaging in an unusually high level of Internet activity involving
Arabic-language websites, which could then lead the FBI to make further
decisions about how to use the rest of its USAPA powers to investigate Mountain
View residents.
24 I have described this as an indirect effect, however, because
it is less clear how City government would be affected.
25 See 18 U.S.C. §
2339A, as amended by USAPA.
26 Id.
27 See David Cole,
Enemy Aliens, 54 Stan. L. Rev. 953
(2002).
28 See Shirin
Sinnar, Note, Patriotic or
Unconstitutional? The Mandatory Detention of Aliens Under the USA Patriot Act,
55 Stan. L. Rev. 1419 (2003).
29 See Limitations
on the Authority of the Immigration and Naturalization Service, Op. Off. Legal
Counsel (February 20, 2003). See also
Sinnar, supra note 27.
30 See Cuéllar, supra note 15.
31 See, e.g.,
Cole, supra note___ (discussing the
trend away from judicial review embodied in USAPA’s immigration law-related
changes); Charles Doyle, The USA PATRIOT
Act: A Legal Analysis, CRS Report for Congress 4-13 (April 15, 2002)(discussing
the trend away from judicial review in USAPA’s other sections).
32 See Center for
National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (D.C.
Cir. 2003).
33 See U.S.
Department of Justice, Questions Submitted by the House Judiciary Committee to
the Attorney General on USA PATRIOT Act Implementation (July 26, 2002). The
House Judiciary Committee asked the following question to the Justice
Department in connection with the Section 215 powers:
Has Section 215 been used to obtain records from a public
library, bookstore, or newspaper? If so, how many times has Section 215 been
used in this way? How many times have the records sought related to named
individuals?… Is the decision to seek orders for bookstore, library, or
newspaper records subject to any special policies or procedures such as
requiring supervisory approval or requiring a determination that the
information is essential to an investigation and could not be obtained through
any other means?
Id.,
at 4. The Justice Department’s response entirely evaded the question of whether
special procedures were in place to supervise requests of records from
libraries. The Justice Department responded in relevant part by noting that:
“The number of times the Government has requested or the Court has approved
requests under this section since passage of the PATRIOT Act, is classified…”
34 The present Administration has pursued a policy of
limiting disclosure of information that had previously been available, and
insisting on disclosing as little in formation as possible about its
counter-terrorism activities. While some of its reticence is understandable
given the situation, such information is crucial to evaluating USAPA’s effects.
Consider two recent situations. Under the Freedom of Information Act, 5 U.S.C.
§ 552, the ACLU requested specific information from the Justice Department
regarding the number of occasions that the Justice Department had used FISA
authorities amended by USAPA. The Justice Department refused to provide the
information, causing the ACLU to file a FOIA suit in federal district court.
The Justice Department defended its decision, and the ACLU did not prevail in
the suit. In a separate FOIA request, I have sought to obtain any Justice
Department records relating to how it plans to gather data to evaluate the
effectiveness of USAPA. Both Main Justice and the FBI insist they have no such
records that they are in a position to release. I am currently negotiating the
release of some records with the Criminal Division of the Department of
Justice. If they fail to release any records, I may bring a FOIA lawsuit.
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