9/11 Commission Report Takes on Patriot Act,

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9/11 Commission Report Takes on Patriot Act,

Government Secrecy; ACLU Outlines Civil

Liberties Problems With Cabinet-Level Spymaster

ACLU | Press Release

 

Thursday 22 July 2004

 

Washington - The official 9/11 Commission report,

released today, takes aim at the USA Patriot Act and

the excessive amount of official secrecy in the Bush

administration.

 

" Regarding civil liberties, the 9/11 Commission

report essentially says that the Justice Department

and White House have not made a compelling case for

either the administration’s obsession with secrecy or

its Patriot Act, " said Anthony D. Romero, ACLU

Executive Director. " This bipartisan report should

serve as a wake-up call for Congress that it must

maintain the sunsets in the Patriot Act. "

 

As the report states on page 394, " The burden of

proof for retaining a particular governmental power

should be on the executive, to explain (a) that the

power actually materially enhances security and (b)

that there is adequate supervision of the executive’s

use of the powers to ensure protection of civil

liberties. If the power is granted, there must be

adequate guidelines and oversight to properly confine

its use. "

 

The long-awaited report, which contains the

official findings of the independent commission

investigating the 9/11 terrorism attacks, contains

significant recommendations germane to the debate over

civil liberties that has raged for more than

two-and-a-half years now.

 

The report echoes criticisms by the ACLU and

others that the Justice Department has so far failed

to demonstrate why the expanded surveillance and

investigative powers in the Patriot Act are needed to

fight terrorism. The commission’s findings, the ACLU

said, strongly confirm the need to maintain the

Patriot Act sunsets.

 

The sunset provisions - which apply to some of the

Patriot Act’s most controversial provisions - would

require Congress to reconsider about a tenth of the

law in December 2005. Provisions that sunset include

the infamous " library records " provision, which

reduces judicial review when counter-intelligence

agents seek secret court orders for the production of

a wide array of personal information, including

library, business, genetic, medical and even gun

purchase records.

 

Notably, the commission does not recommend that

any sunseted provisions should be made permanent.

 

In addition, the commission’s report contains a

list of 10 separate missed " operational " opportunities

to foil the attacks. While the report stops short of

calling the attacks preventable, it clearly shows that

the intelligence and law enforcement communities were

not using their existing counter-terrorism powers to

their fullest potential.

 

" The administration has yet to explain why it

didn’t use its already expansive power to the fullest

before 9/11, " said Laura W. Murphy, Director of the

ACLU Washington Legislative Office. " The commission’s

report suggests that the White House claim that the

worst parts of the Patriot Act are needed to stop

terrorism is dubious, to say the least. "

 

The report also cites both excessive government

secrecy and overclassification as threats to open

government and, more notably, as threats to national

security. The ACLU pointed to the finding as evidence

that the government should stop stonewalling the

series of Freedom of Information Act requests

submitted by the ACLU and other civil liberties groups

on the Patriot Act, the Abu Ghraib scandal and other

matters of public interest.

 

Characterizing the current Congressional

intelligence watchdog system as " dysfunctional, " the

commission’s strongest recommendation is the need for

more aggressive Congressional oversight of the

intelligence community, including making the

intelligence budget public. The ACLU applauded the

move but emphasized that the structure of the

committee would be less important than whether its

operation was in turn open to public scrutiny.

 

As the report stated: " Secrecy stifles oversight,

accountability and information sharing. Unfortunately,

all the current organizational incentives encourage

over-classification. This balance should change; and

as a start, open information should be provided about

the overall size of agency intelligence budgets. "

 

Contrary to earlier reports, the commission

explicitly rejects - in part, for civil liberties

reasons - the creation of a domestic intelligence

agency modeled after Britain’s MI-5. The ACLU, a

critic of any domestic intelligence activity that is

not linked to law enforcement, applauded the move.

 

Unfortunately, there are some recommendations that

raise civil liberties concerns; two of the most

salient are calls for the backdoor creation of

national ID cards in the form of a standardized

drivers licenses and a cabinet-level intelligence

czar.

 

" A Senate-confirmed intelligence director sitting

in the White House would be in the hip pocket of the

president, " Romero added.

 

The ACLU questioned whether pitting the FBI’s

culture of case-oriented law enforcement against the

CIA’s culture of covert, subversive operations, under

one chief, would result in a further weakening of

civil liberties protections in the FBI’s intelligence

work. Similarly, if the new director were to have

operational control over both domestic and foreign

intelligence work - that is, real authority over both

the FBI and the CIA - he or she could blur the lines

between the agencies’ two very different missions.

 

Finally, the ACLU expressed concern that if the

director of national intelligence ends up controlling

the purse strings of the entire intelligence

community, there are very few contingencies that could

keep the director from exercising specific,

operational control over both domestic and foreign

intelligence.

 

 

The 9/11 Commission's report can be found at:

http://www.9-11commission.gov.

For more information, see:

http://www.aclu.org/safeandfree.

 

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