Saturday, November 28, 2009

The Irony of Unintended Consequences

By William Fisher

The Supreme Court has agreed to hear a case challenging a law that treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes.

The case is known as Holder v. Humanitarian Law Project, and is the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”

The plaintiffs, led by the Center for Constitutional Rights (CCR), charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime. The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.

The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department.

Said CCR Cooperating Attorney David Cole, a law professor at the Georgetown University Law Center, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law. The Obama administration sought Supreme Court review of that decision.

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

Meanwhile, committees of the U.S. Senate and House of Representatives continue to debate three provisions of the USA Patriot Act that are due to expire on December 31

The expiring provisions are the roving wiretap authority, the so-called "section 215" business records orders, and the nicknamed "lone wolf" provision.

The roving wiretap authority expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order "roving" or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act (FISA) required a separate FISC authorization to tap each device a target used.

Section 215’s reference to Business Records substantially revised the authority under FISA for seizure of business records, including third party records of individuals' transactions and activities. Previously, the FBI could apply to the FISC for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadened that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. The recipient of the order may not disclose the fact that the FBI has sought or obtained records.

The nicknamed "Lone Wolf" authorization allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.

The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.

The Obama Administration has quietly endorsed the reauthorization of the provisions due to expire. The Senate Judiciary Committee has voted to make only minor changes to these measures, while the House of Representatives Judiciary Committee is seeking far more sweeping reforms.

The new legislation proposed by the House committee would permit the so-called “lone wolf” provision to sunset. It would also restrict the use of National Security Letters (NSLs). According to a Congressional Research Service report, NSLs “are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”

Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.

A jittery Congress passed The Patriot Act by a landslide 45 days after the 9/11 terrorist attacks with virtually no debate. It provides law enforcement and intelligence agencies with sweeping additional powers to thwart terrorist activities. The law was reauthorized in 2005.

The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.

Among its most outspoken critics is Chip Pitts, president of the Bill of Rights Defense Committee. He told IPS, “In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror -- and avoid being accused of being “soft on terror” -- brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed.”

He added, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”