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TIMETABLE FOR HJM40: Senate Judiciary Committee Hearing: likely to be Friday, March13, possibly early To the Senate floor for a full vote:likely to be Monday, March 14 or 17 INFORMATION on HJM40 See the Memorial One Page Overview of HJM40 - Global Dialog Project Speaking Points on HJM40 - by the NM ACLU Talking Points on HJM40 - courtesy of the Global Dialog Project The Big Picture: Key Reasons Not to Destroy Our Constitutional Freedoms -Global Dialog Project What HJM40 Does -Global Dialog Project "The rights of all men are diminished if the rights of any man are denied." -John F. Kennedy Join our discussion list Join the events-announcement list |
HJM 40: Sectional Analysis WHEREASES A. Secret Searches: Sec. 213 of the USA Patriot Act gives federal authorities the power to delay notice of any search, regardless of whether terrorism is involved, if “the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.” · This broad language effectively gives law enforcement officials the authority to determine whether or not they will notify subjects of search warrants that their property is going to be searched. · In a covert search, any protections afforded by a warrant are meaningless because the searching officer has complete and unsupervised discretion as to what, when and where to search and the individual owner is not provided notice so cannot assert and protect his or her rights. B. Access to records: Sec. 215 of the USA Patriot Act amends the Foreign Intelligence Surveillance Act (FISA) of 1978 to allow law enforcement officers to apply to the FISA court for an order to compel the production of “any tangible things (including books, records, papers, documents, and other items)” from anyone for any investigation to protect against international terrorism or clandestine intelligence activities (but cannot investigate a US person solely for First Amendment activities). · Judges are required to issue the ex parte order. The officer does not need to show probable cause that the subject of the order is involved in criminal activity. · Subjects of subpoenas are prohibited from disclosing any information about the subpoena to the public. · Last summer, the telecommunications industry was barraged with thousands upon thousands of subpoenas for subscriber lists, personal credit reports, financial information, routing patterns that reveal individual computer use, even customer photographs. · This included companies like AT&T Wireless, AOL, the Cellular Telecommunications and Internet Association, Cricket, Nextel, Voicestream, and Cingular Wireless. · Attorneys for these companies reported that the subpoenas were not targeted to individual suspects but used a “shotgun approach.” Some companies were served with so many subpoenas that they had to hire extra staff to comply with the requests. C. State enforcement of immigration law According to INS statistics, some 80,000 immigrants live in New Mexico, most of them legal. Most immigrants live in poorer parts of Albuquerque and the state and, consequently, are exposed to high rates of crime and violence. When state and local police cooperate with the Immigration and Naturalization Service or otherwise scrutinize immigrants for legal status, they send a strong message to immigrants, both legal and illegal, that they cannot go to the police to report crimes. Even if they themselves are legal, immigrants fear that an encounter with police will jeopardize the stability of their families and the lives of undocumented family members. · Nothing in the USA Patriot Act or other federal law requires state and local police to enforce federal immigration law. Our police do not have the proper training or the resources to enforce this complex body of federal law. The ACLU us investigating two recent incidents in which NM state police officers unlawfully seized identification documents from people whom they erroneously suspected of being illegal. Electronic Surveillance Sections 214, 216, and 218 of the USA Patriot Act changed the Foreign Intelligence Surveillance Act (FISA) to requires federal judges to issue wiretaps to any federal law enforcement officer who asserts that foreign intelligence gathering is one purpose of his or her investigation. The officer does not have to show probable cause that the subject of the wiretap order is involved in criminal or terrorist activity. The judge has to issue the warrant even if he knows that the officer has no evidence on the subject and is simply fishing around to see if he can turn up some incriminating information. Resolutions in other parts of the country Over 50 cities across the country have passed resolutions reaffirming the commitment of city councils to uphold the Bill of Rights. In addition to our own Santa Fe, those cities include Detroit, San Francisco, Seattle, Denver, and Flagstaff, Arizona. The number of Americans living in communities that have passed such measures stands now at approximately 5.5 million people. Surveillance of religious organizations, political demonstrations, etc. In May of last year, Attorney General Ashcroft rewrote longstanding restrictions on domestic spying that were put into place in response to law enforcement excesses in the 1950s and 1960s. They were put in place after the FBI illegally spied on and persecuted the Rev. Dr. Martin Luther King Jr. and other political dissenters. In response to congressional investigations into law enforcement abuse, the Justice Department adopted "Attorney General Guidelines" that limited the scope of acceptable surveillance and infiltration of religious and political organizations. · Specifically, the guidelines required that law enforcement agencies have at least a scintilla of evidence -- or even a hunch -- of a crime before engaging in certain investigative activities. Under the new Ashcroft guidelines, the FBI can freely infiltrate mosques, churches and synagogues and other houses of worship, listen in on online chat rooms and read message boards even if it has no evidence that a crime might be committed. THEREFORES C.1. Surveillance of 1st Amendment activity In May of last year, Attorney General Ashcroft rewrote longstanding restrictions on domestic spying that were put into place in response to law enforcement excesses in the 1950s and 1960s. They were put in place after the FBI illegally spied on and persecuted the Rev. Dr. Martin Luther King Jr. and other political dissenters. In response to congressional investigations into law enforcement abuse, the Justice Department adopted "Attorney General Guidelines" that limited the scope of acceptable surveillance and infiltration of religious and political organizations. · Specifically, the guidelines required that law enforcement agencies have at least a scintilla of evidence -- or even a hunch -- of a crime before engaging in certain investigative activities. Under the new Ashcroft guidelines, the FBI can freely infiltrate mosques, churches and synagogues and other houses of worship, listen in on online chat rooms and read message boards even if it has no evidence that a crime might be committed. This is a clear threat to protected First Amendment activity because it discourages citizens from expressing their opinions about public police in public. C.2. Using race for profiling This provision is intended to prevent the unconstitutional practice of “racial profiling.” It doesn’t preclude officers from using race or national origin as one factor in the “totality of circumstances” that they might use to identify a criminal suspect. It discourages them from using race as a proxy for evidence of criminal activity. · The costs of racial profiling far outweigh the benefits. Despite popular perceptions, racial profiling is not an efficient police tool because such a small percentage of any racial or national origin group is involved in criminal activity. Of the 1,200 Middle Eastern immigrants who were detained by the Department of Justice after 9/11, only 20 or 30 are believed to have been linked to terrorist activity. These few gains were made at the risk of alienating the Arab American community from investigators and possibly shutting down communication that could have produced other leads. · Lawsuits based on claims of racial profiling recently have been brought against law enforcement in Texas, New Jersey, Maryland, and even here in New Mexico. One year ago, the ACLU settled a class action suit against the Hobbs Police Department for targeting African American residents of Hobbs with the use of excessive force, unwarranted searches of their homes, illegal detentions, and malicious filing of criminal charges. A consent decree resulted from that lawsuit, requiring Hobbs police to vastly improve officer training and internal reporting procedures. The practice of targeting Blacks has continued, however, and earlier this year the ACLU filed a motion of contempt against the Department. C.3. Maintaining information about political views and associations In May of last year, Attorney General Ashcroft rewrote longstanding restrictions on domestic spying that were put into place in response to law enforcement excesses in the 1950s and 1960s. They were put in place after the FBI illegally spied on and persecuted the Rev. Dr. Martin Luther King Jr. and other political dissenters. In response to congressional investigations into law enforcement abuse, the Justice Department adopted "Attorney General Guidelines" that limited the scope of acceptable surveillance and infiltration of religious and political organizations. · Specifically, the guidelines required that law enforcement agencies have at least a scintilla of evidence -- or even a hunch -- of a crime before engaging in certain investigative activities. Under the new Ashcroft guidelines, the FBI can freely infiltrate mosques, churches and synagogues and other houses of worship, listen in on online chat rooms and read message boards even if it has no evidence that a crime might be committed. This is a clear threat to protected First Amendment activity because it discourages citizens from expressing their opinions about public police in public. C.4. Stopping drivers without probable cause This provision seeks to provide more protection against racial profiling. Pretextual traffic stops and pedestrian Terry stops are the police practices that most commonly contribute to racial profiling. Citizens and legal immigrants shouldn’t be scrutinized by law enforcement simply because they “look out of place.” Officers should have articulable facts giving rise to criminal suspicion before they investigate someone. To do otherwise only erodes trust between communities and the law enforcement officers who are intended to protect them. D. Schools and institutions provide notice Sections 507 and 508 of the USA Patriot Act amended the Family Educational Rights and Privacy Act (FERPA), giving law enforcement broad access to student records without particularized suspicion of criminal wrongdoing. FERPA already had numerous exceptions allowing officials to access those records, including an emergency exception allowing educational institutions to disclose student records in an emergency if such information is necessary to protect the health or safety of the student or other individuals. · But law enforcement officials wanted even easier access to a broader range of student information. Section 508 of the USA PATRIOT Act allows law enforcement to access the student data collected for the purpose of statistical research under the National Education Statistics Act (NESA). The NESA includes a vast amount of identifiable student information and - until now-has been held to strict confidentiality requirements without exception. While the bill requires a court order, it would be issued based on a mere certification that the records are relevant to an investigation. This standard is insufficient to protect the privacy of sensitive information contained in student records. E. Public Libraries On January 29th, 2003, the American Library Association (ALA) adopted a resolution that: · - Describes the USA PATRIOT Act as “a present danger to the constitutional rights and privacy rights of library users,” and - “encourages all librarians, library administrators, library governing bodies, and library advocates to educate their users, staff, and communities about the process for compliance with the USA PATRIOT Act and other related measures and about the dangers to individual privacy and the confidentiality of library records resulting from those measures” - On January 31, 2003, the New Mexico Library Association endorsed this resolution. Sec. 215 of the USA Patriot Act amends the Foreign Intelligence Surveillance Act (FISA) of 1978 to allow law enforcement officers to apply to the FISA court for an order to compel the production of “any tangible things (including books, records, papers, documents, and other items)” from anyone for any investigation to protect against international terrorism or clandestine intelligence activities (but cannot investigate a US person solely for First Amendment activities). Judges are required to issue the ex parte order. The officer does not need to show probable cause that the subject of the order is involved in criminal activity. Subjects of subpoenas are prohibited from disclosing any information about the subpoena to the public.