American Conservative Union Public Memorandum to Conservative Leaders and Activists

February 26, 2003

TO: CONSERVATIVE LEADERS AND ACTIVISTS

FR: W. Stephen Thayer, III, ACU Executive Director

RE: ACU Analysis of the Domestic Security Enhancement ACT (DSEA) of 2003, also known as "Patriot Act II"

As most recall, in the aftermath of the terrorist attacks on September 11, 2001 the Department of Justice (DoJ) supported legislation known as the "USA Patriot Act" which contained provisions the department felt were necessary to protect this nation from further terrorist attack. The American Conservative Union (ACU), at that time, publicly stated its belief that the proper balance between national security and civil liberties must be maintained and urged the United States Congress to work toward that balance when considering anti-terrorism legislation. The Congress changed some of the provisions of the original bill to reflect civil liberty concerns and the USA Patriot Act became law.

A draft of a new bill, The Domestic Security Enhancement ACT (DSEA), purportedly authored by the DoJ-designed to meet anti-terrorism law enforcement needs not met by the USA Patriot Act-has surfaced. This legislation contains a multitude of new and sweeping law enforcement and intelligence gathering powers, some of which are not related solely to terrorism again raises our initial concern of maintaining a proper balance between national security and individual freedom.

Having reviewed this bill, ACU has determined that it cannot support this legislation as currently written.

Some of the provisions of the bill that do not strike the proper balance, because they unreasonably infringe on civil liberties, are listed below.

If signed into law the bill would:

• Expand the jurisdiction of the secret Foreign Intelligence Surveillance Act (FISA) by authorizing the government to initiate wiretaps and other electronic surveillance on individuals who have no ties to foreign governments or terrorist organizations. (Section 101)

• Expand the government's electronic surveillance authorization for a function performed by an electronic device to a general authorization that covers all functions the device performs. (Section 124)

• Expand the use of Nationwide Search Warrants from the present terrorism standard of "violent acts or acts dangerous to human life" to include non-violent acts. (Section 125)

• Lowers the legal standard law enforcement officials must meet in order to obtain credit reports and prevents the disclosing to a consumer that his/her credit report was sought. All without judicial procedure. (Section 126)

• Expands the use of administrative subpoenas to areas formerly governed by grand jury rules and court supervision. (Section 128)

• Automatically exempts from the Freedom of Information Act information about all detainees in terrorism investigations without a showing of need before a judge. (Section 201)

• Allow the government to secretly submit any evidence it wishes to the without notifying the defendant. (Section 204)

• Change grand jury rules so as to bar witnesses and defendants in terrorism investigations from discussing their grand jury testimony without a judicial determination that secrecy is warranted. (Section 206)

• Allow the government to collect DNA samples from individuals who have not consented or been found guilty of a terrorism-related crime and without a judicial order based on the showing of need. (Section 302)

• Permit, without any connection to anti- terrorism efforts, sensitive personal credit and educational information to be shared with local and state law enforcement. (Section 311)

• Grant immunity to businesses and their personnel who provide information to the government in terrorism investigations, even if a report was false. (Section 313)

• Creates a new crime of using encryption technology to conceal any communication or information relating to a felony. This new crime is not limited to terrorism crimes and covers conduct already illegal. (Section 404)

• Impose potentially life-long supervision and eliminating statute of limitations for nonviolent crimes listed as terrorism crimes, even when they create no risk of death or serious injury. (Section 408)

• Strip even native born Americans of all of their rights of United States citizenship by inferring intent to relinquish citizenship if they provide support to an organization they may not even know has been labeled a "terrorist organization." (Section 501)