Posted on 10/30/2001 10:34:24 AM PST by freedomnews
Edited on 09/03/2002 4:49:30 AM PDT by Jim Robinson. [history]
Originally published October 29, 2001 Inside, the judges of America's secret court, the Foreign Intelligence Surveillance Act Court, rule on requests to tap the phones, bug the rooms and break into the houses of terror suspects on U.S. soil.
With President Bush's signing Friday of sweeping new anti-terror legislation, the secret court's jurisdiction has been widely expanded. Attorney General John Ashcroft said he would order investigators to immediately use the new wiretap powers to track down those responsible for the Sept. 11 and anthrax attacks and to prevent new acts of terror.
(Excerpt) Read more at sunspot.net ...
Terrorism bill OKs 'sneak-and-peek'
Marcia Coyle
The National Law Journal
October 29, 2001
Among the likely court fights over Congress' terrorism package is one over so-called sneak-and-peek warrants, according to Fourth Amendment scholars and groups across the political spectrum.
The anti-terrorism package enacted in the wake of the Sept. 11 attacks contains a provision expanding the authority of federal law enforcement officers to conduct covert searches.
Unlike other provisions broadening law enforcement power, this one does not have a "sunset" or time limit attached that would allow the lawmakers to revisit its necessity at a later date. And like many other provisions, the sneak-and-peek language is not restricted to terrorism investigations.
"On the face of things, the connection between this provision and terrorism generally is tenuous," says criminal procedure scholar Tracey Maclin of Boston University School of Law. "It's not tied to cases in which national security or threats from foreign agents appear to be the focus of investigation. It can apply to any intrusion.
"It allows the government to go in, conduct a search and then not tell anybody that they've been in one's home."
Like much of the anti-terrorism package, what the Justice Department wants with covert searches is "partly necessary," says Stephen Saltzburg of George Washington University Law School, a member of the American Bar Association's Taskforce on Terrorism and Law.
"I think most people would agree that in some limited situations, these sneak-and-peek warrants make sense," he says. "It's the breadth that concerns people and they're not persuaded the government can do this for any kind of a warrant."
Because of that breadth, the law will be challenged under the Fourth Amendment, predicts Timothy Lynch, director of the Criminal Justice Project at the libertarian Cato Institute.
Prior to the anti-terrorism package, nothing in the criminal code authorized secret searches for physical evidence, says Rachel King, legislative counsel to the American Civil Liberties Union. In fact, Rule 41(d) of the federal Rules of Criminal Procedure still requires officers conducting a search to "leave a copy and receipt at the place from which the property was taken."
The Supreme Court in 1977 held that an officer, absent exigent circumstances, must knock and announce his presence before serving a search warrant.
But delayed notice of searches has been authorized in two instances: The federal wiretap law -- Title 18 -- permits delayed notice for searches of oral and wire communications, as does the Foreign Intelligence Surveillance Act for intelligence gathering.
"In terms of regular, run-of-the mill criminal searches for physical evidence, our position is they don't have any authority to do it," King says. "To me, it is the ultimate power grab."
The terrorism law permits delayed notice of a search if a court finds reasonable cause to believe that immediate notice of the warrant may have an adverse result on an investigation. The warrant must provide for giving notice within a "reasonable period," which could be extended by a court for good cause.
The Justice Department argued that the existing law is a mix of inconsistent rules, practices and court decisions that vary from jurisdiction to jurisdiction. It said the anti-terrorism provision resolves the inconsistency by establishing a uniform, statutory standard for all cases.
The department also relied on a 1990 decision by the 2nd U.S. Circuit Court of Appeals. In U.S. v. Villegas, 899 F.2d 1324, the court upheld a covert search where no physical evidence was seized in a drug investigation. But the court said that certain safeguards are required for covert searches, such as a showing of reasonable necessity for the delayed notice.
The 9th Circuit, also in a drug case, earlier found a covert search unlawful under Rule 41 and under the Fourth Amendment because the warrant contained no provision for notice. A delay in notice, the court said, should not extend beyond seven days except upon a strong showing of necessity. The court allowed the evidence in under the "good faith" exception to the exclusionary rule. U.S. v. Freitas, 800 F.2d 1451 (1986).
Beyond a handful of court rulings, there is little authority to support secret searches, Saltzburg says.
"A fair statement would be that because the Supreme Court has a knock-and-announce rule, the court's assumption is most searches are not going to be secret," he says. But, he says, "I think there is a good argument to be made that it doesn't make sense to say you can delay notice on wiretaps but can't delay notice on any other physical search. That kind of distinction is arguably backward because tapes can go on for months and people have enormous interest in knowing about them."
Some critics across the political spectrum agree with Saltzburg that the covert-search provision might have been more palatable with restrictions.
"It should be tied to terrorism investigations," says Phil Kent, president of the conservative Southeastern Legal Foundation. "And the extraordinary power requested should be temporary."
In the end, Boston University's Maclin says, "It's all a question of how we view the Fourth Amendment. The amendment's essential purpose is to control the discretion of government officials to intrude in our lives. How many judges, particularly where criminal contraband is discovered, are going to say the government's request is unreasonable? They're not going to do it."
The Supreme Court has not focused on notice under the Fourth Amendment as much as it has on probable cause and reasonable suspicion, says Fourth Amendment scholar Yale Kamisar of the University of Michigan Law School. "As long as the police have probable cause or individualized suspicion to do this, the Court could say there's no reason to tell you," he says. "But I'd hope not. People ought to know what's taken from them so they can at least prepare a defense."
The problem may be getting a challenge before the Supreme Court, adds the Cato Institute's Lynch. "Having Congress codify this power strengthens the department's hand when the warrants are litigated. And if the department sees a potential legal challenge in front of them, they may offer plea bargains to eliminate the threat.
"That's why we find this so worrisome. It may take 10 years or more before this power is invalidated."
index bump
WASHINGTON -- The anti-terrorism bill that President Bush signed Friday could restrict free speech, according to some First Amendment advocates.
Both houses of Congress, in votes Wednesday and Thursday, gave overwhelming support to the measure aimed at investigating terrorists. U.S. Attorney General John Ashcroft promised to use the new powers vigorously.
Paul McMasters, First Amendment ombudsman at the Freedom Forum, called the new eavesdropping powers "troublesome."
"When American citizens suspect someone is looking over their shoulder ... not only is their speech chilled, their willingness to talk to the press is lessened," McMasters said.
McMasters pointed to the Justice Department's secret subpoena of an Associated Press reporter's telephone records this year, and said he feared officials might abuse their new wiretap authority.
Al Cross, a columnist for The Courier-Journal of Louisville, Ky., who is president of the Society of Professional Journalists, said the new law "enhances the disturbing climate we've seen develop in past months." Such developments include an Ashcroft memorandum urging federal agencies to be cautious in fulfilling Freedom of Information Act requests.
The American Civil Liberties Union (ACLU) said the legislation creates a broad new definition of domestic terrorism that could result in wiretaps targeting people engaged in political protest.
Speaking in support of an organization that the attorney general deems to be terrorist could be forbidden, said ACLU President Nadine Strossen: "Even an editorial that supports [a designated group's] lawful actions comes under the ambit of this legislation."
Have you ever known the government to take a law off the books?
By John Berlau jberlau@InsightMag.com
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Government-required surveillance provisions in the newly passed antiterrorism bills could force banks to rob their customers of both financial privacy and convenience. But how will the provisions aid in curtailing terrorism?
Air travel isn’t the only industry hit with big changes in the aftermath of the Sept. 11 terrorist attacks. Depending on how regulators interpret the anti-money-laundering provisions of the hastily passed House and Senate antiterrorism bills, your relationship with your banker — or, for that matter, any business with which you conduct financial transactions, from buying stock to cashing checks — is likely to change forever in ways you will and will not be able to see. That’s what insiders of the financial-services industry tell Insight. Many on both the left and right are afraid that in the zeal to stop terrorists from moving their assets into the United States the financial privacy of law-abiding Americans will be sacrificed.
“It’s going to be a great inconvenience to people, a great regulatory burden, and no real benefit to what they’re trying to do,” says J. Bradley Jansen, director of the conservative Free Congress Foundation’s Center for Technology Policy. Jansen has coauthored several appeals to Congress on privacy issues with liberal groups, including the American Civil Liberties Union.
Traditionally, Americans have come to expect their banks to protect their privacy and resist sharing sensitive depositor information. Banks, in fact, long promised and delivered such confidentiality, though it never was absolute. Even the most security-conscious bank would cooperate when law-enforcement agencies went to court, showed probable cause and then presented a search warrant or subpoena for access to bank records connected to a crime.
But since Richard Nixon signed the Bank Secrecy Act in 1970, the federal government gradually has required banks routinely to disclose transactions above a certain dollar amount and other alleged “suspicious activity” by customers, regardless of any showing of probable cause. Such information is shared, in turn, among law-enforcement agencies worldwide, and banks are forbidden to tell their customers when a report on them has been filed.
This type of government-required surveillance reached a high-water mark in the Clinton administration when the Federal Reserve and other agencies that regulate U.S. banks jointly issued the now-infamous “Know Your Customer” (KYC) regulations in 1998 (see “Snoops and Spies,” Feb. 22, 1999). The rules would have required banks to determine “the source of a customer’s funds” and the customer’s “normal and expected transactions,” to monitor each customer’s account activity and to report to the feds any deviation from a customer’s “historical patterns.”
The agencies withdrew the rules after massive bipartisan opposition and more than 300,000 opposing comments. But, in the aftermath of the recent terrorist attacks, regulators were announcing that KYC was back even before the so-called emergency legislation was signed into law. At a late October conference of the American Bankers Association (ABA) in Arlington, Va., Federal Reserve Bank of Atlanta Vice President Suzanna Costello said that her agency already was “looking for … effective Know Your Customer” programs at the banks it regulates. “A year ago I wouldn’t have even said, ‘Know Your Customer,’” she told the gathering of top bank officials. “The KYC word was ‘Kill Your Career’ at the Fed. But I see that it’s back.”
While the new law carefully avoids references to KYC, it contains stiffer fines for financial institutions found to be in violation of “suspicious-activity” reporting on its customers. It also gives broad enforcement powers to the secretary of treasury and financial-regulatory agencies. And it expands the reporting requirements from banks to all “money-service businesses,” such as convenience stores that sell money orders and cash cards, as well as stockbrokers and insurance companies. It also requires U.S. banks to know and investigate many of the customers of the foreign banks with which they do business.
The antiprivacy provisions are measures that have been pushed for years by Democrats such as Sens. Carl Levin of Michigan and Paul Sarbanes of Maryland. Senate Democrats reportedly threatened to scuttle the entire bill unless the Bush administration agreed to go along with these provisions, which many Republicans long have opposed.
Because so many congressional offices were closed as a result of the anthrax attacks, many members of Congress and their staffs did not even read and review provisions of the bill before they voted on it. As a result, privacy advocates say, it will be crucial for members of Congress and the Bush administration carefully to scrutinize the federal agencies as they develop regulations to implement the emergency law.
Already the banking industry is preparing for massive new regulation. KYC is “certainly coming back with something of a vengeance,” said Elliot Berman, of the Milwaukee law firm of Godfrey & Kahn, who works in its Financial Institutions Practice Group, during another session of the ABA conference. “It has a new name: enhanced due diligence,” he said. Although consumers still won’t know if a “suspicious” withdrawal or deposit they made has been reported to the government, Berman said, they will see effects of the required profiling and monitoring in other ways.
One of the first casualties of the forthcoming regulations may be the speed and convenience of Internet banking. The idea of opening an account for instant use is going to go away, Berman said. “On Monday, I might sit down and open an account on NetBank, but my account probably won’t be active until next Monday, when they’ve had a chance to do many of the things that they currently do if I sat down across the desk. [The Internet will be] just another delivery channel. That’s all it’s ever been, and now it’s just going to look a lot more like the older delivery channels,” he said.
Other conveniences that may go because of requirements for enhanced scrutiny include immediate payment when a loan is approved, Berman tells Insight. Richard Harvey, chief privacy officer for the Washington-area Chevy Chase Bank chain, tells Insight that more forms will be required for credit-card applications and car loans. He wonders how his bank will be able to comply with the enhanced-scrutiny requirements and not run afoul of privacy and discrimination rules such as Regulation B, which prohibits banks from determining an applicant’s race for a credit card or consumer loan. “To ask everybody who applies for a credit card for such information as a copy of their driver’s-license picture is a Reg B violation,” he explains.
Nevertheless, many banking-industry insiders seem resigned to the loss of privacy and convenience for their customers as necessary for the fight against terrorism. “It’s very similar to what’s happening in airports,” Berman says. “I think those same kinds of things are going to happen to the financial-services industry. For the legitimate customer it’s going to be irritating and slow things down.”
But some law-enforcement experts say that unlike airports, where scrutinizing every passenger potentially can prevent someone from getting onto a plane with a knife or a gun, routine surveillance of bank customers likely will do little to stop terrorist acts. Gary Aldrich, a retired FBI agent who heads the Patrick Henry Center for Individual Liberties, tells Insight that KYC programs are not worth the cost to the right of the people to privacy. “I am pro-law-enforcement, but I’ve seen the same problem throughout my FBI career:
Punish everyone to send a message to one. I don’t think it works,” says Aldrich, who has written about the lax security measures for White House personnel under the Clinton administration. “I think it dilutes the government’s ability actually to catch suspicious people because the flow of information into some central authority becomes so huge it cannot be analyzed fast enough to make any sense of it.”
Aldrich is not the only one to call this flood of data stemming from the Bank Secrecy Act a problem. At the ABA conference luncheon speech, Treasury Undersecretary for Enforcement Jimmy Gurulé noted that the Treasury Department’s Financial Crimes Enforcement Network, the central database of bank reports now used by law-enforcement agencies, receives 13 million currency-transaction reports from banks every year.
“It is estimated that approximately 30 percent of those do not need to be filed under existing exemption regulations,” Gurulé says. “Proper use of the exemptions would provide law enforcement with data purged of meaningless reports. This would be extremely helpful in an age when law enforcement is inundated by more information than they can sometimes process.”
Yet, in the same speech, Gurulé praised the “landmark” money-laundering legislation, which will require the filing of even more reports. The law does give the treasury secretary the authority to create further exemptions from reporting requirements.
But a Bank Secrecy Act compliance officer for a chain of banks in the Southeast tells Insight that the current incentive is to overreport because regulators come down hard when reports they believe should be filed aren’t. The compliance officer also says that it would take time and require costly software upgrades to weed out transactions that meet the exemptions. “It’s another level of scrutiny, another level of investigation,” the compliance officer says.
Treasury spokeswoman Tasia Scolinos says Gurulé wants to work with banks to streamline the filing process. In the meantime the Treasury Department has set up the Foreign Terrorist Asset Tracking Center and given banks a list of suspected terrorists to monitor in addition to those whose assets already have been frozen. Gurulé praised bank cooperation with this effort.
Efforts like these, targeted at specific suspects, likely will bear more fruit than the widespread monitoring of all bank customers, experts say. The Free Congress Foundation’s Jansen says the federal government needs to focus on those suspected of terrorism rather than mandating mass surveillance of everyone.
“We have no problem with law enforcement getting all of the information they need to bring these perpetrators to justice,” he says. “But this gross surveillance of everyone all the time didn’t prevent these tragedies, it’s not going to prevent any in the future and it just diverts resources away from actually following the intelligence they do have.”
Unfortunately, say Jansen and others, much that is in the money-laundering provisions of the new law has nothing to do with fighting terrorism. For the last few years, the Clinton administration, the European Union and left-wing Democrats such as Levin have wanted to crack down on “harmful tax competition” from such offshore banking centers as the Cayman Islands, the Bahamas and Bermuda. In language virtually identical to a bill supported by the Clinton administration last year, the antiterrorism bill passed by the Democratic Senate let the treasury secretary include “special measures.”
These included sanctions on countries that “offer bank secrecy or special tax or regulatory advantages to nonresidents,” that have a large volume of financial transactions relative to the size of their economies or that are “characterized as a tax haven or offshore banking or secrecy haven by credible international organizations.”
House Republicans prevailed in getting specific references to the word “tax” removed from these sections, but some fear that “regulatory advantages” still could be construed to apply to a country’s tax policy.
Never mind the fact that because a country offers low taxes and bank secrecy to foreigners doesn’t mean it condones money laundering. Dan Mitchell, senior fellow at the Heritage Foundation and cofounder of the Center for Freedom and Prosperity, points out that no major offshore financial center is on the international Financial Action Task Force’s list of “noncooperative” jurisdictions in the fight against laundering of criminal proceeds. He says that some consider the United States a tax haven because it offers advantages to foreigners over residents by not taxing interest on their bank accounts.
To stop terrorism, Mitchell proposes mutual legal-assistance treaties with offshore financial centers. If they don’t cooperate in stopping the flow of terrorist assets, the United States then has every right to impose sanctions, he says. “If we find out that some place is actually sheltering and harboring and is complicit in the protection of [terrorist assets], no ifs, ands or buts, we should crush someone like that.”
Mitchell does not think Treasury Secretary Paul O’Neill will use these provisions to go after low-tax countries. Yet observers note that the Bush administration changed its tune about much of its money-laundering strategy after Sept. 11. Before that, its 2001 National Money-Laundering Strategy, written in early September, expressed resistance to global KYC programs and crackdowns on tax havens, preferring to focus efforts on major money-laundering organizations. The report stated that “we do not have a system in place that objectively evaluates which strategies have proven to be the most effective.”
After Sept. 11, the administration appeared to have been spooked, according to insiders. “The Bush administration has done a complete turnaround on the issue,” says Bruce Zagaris, a partner at the Washington law firm of Berliner, Corcoran & Rowe. “There was a concern that he [Bush] was perceived as not as strong as the Democrats on money laundering.”
Privacy advocates hope Bush will focus on terrorism and regain his bearings when issuing the regulations. They presume he will get good advice from National Economic Council Director Lawrence Lindsey. In a chapter of a Competitive Enterprise Institute book published last year, The Future of Financial Privacy,
Lindsey noted that 100,000 reports are collected on bank customers for every one conviction of money laundering. “That ratio of 99,999-to-1,” he wrote, “is something we normally would not tolerate as a reasonable balance between privacy and the collection of guilty verdicts.” John Berlau is a writer for Insight.
Here It Is: A Wish List Granted That Would Make Adolph Hitler Proud. H.R.3162
"Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Received in the Senate)"
AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT. SEC. 213.
NEWSFLASH: THE SECRET WARANTLESS SEARCHES AND OTHER POLICE STATE MEASURES IN THE BILL ARE NOT SUNSETTED. THE MEDIA AND THE GOVERNMENT ARE LYING TO YOU. SEC. 224 SUNSET.
YOUR SO-CALLED PROTECTION GIVES YOU NO PROTECTION. IT IS UNDER ADMIRALTY AND MARITIME JURISDICTION SEC. 316. ANTI-TERRORIST FORFEITURE PROTECTION
SEC. 802. DEFINITION OF DOMESTIC TERRORISM. the term `domestic terrorism' means activities that-- `(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State
BULK CASH SMUGGLING INTO OR OUT OF THE UNITED STATES SEC. 371.
REPORTING OF SUSPICIOUS ACTIVITIES BY UNDERGROUND BANKING SYSTEMS. SEC. 359.
USE OF AUTHORITY OF UNITED STATES EXECUTIVE DIRECTORS. SEC. 360.
Still think these laws are a good idea?
L
Our very lives perhaps?
even more frightening is that this SS style
secret police kangaroo court was put into place
by the party which claims to stand for individual
freedom and limited government
the republican party.
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