The following is mirrored from its source at
http://archive.aclu.org/congress/l102301j.html.
© 2001, American Civil Liberties Union. Reprinted with permission of the
American Civil Liberties Union (www.aclu.org).
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How the USA-Patriot Act Puts the CIA
Back in the Business of Spying on Americans
The final version of the anti-terrorism legislation, the Uniting
and Strengthening America By Providing Appropriate Tools Required
To Intercept and Obstruct Terrorism (H.R. 3162, the "USA PATRIOT
Act") puts the Central Intelligence Agency back in the business of
spying on Americans. It permits a vast array of information
gathering on U.S. citizens from school records, financial
transactions*, Internet activity, telephone conversations,
information gleaned from grand jury proceedings and criminal
investigations to be shared with the CIA (and other non-law
enforcement officials) even if it pertains to Americans. The
information would be shared without a court order. The bill also
gives the Director of the Central Intelligence Agency, acting in
his capacity as head of the Intelligence Community, enormous power
to manage the collection and dissemination of intelligence
information gathered in the U.S. This new authority supercedes
existing guidelines issued to protect Americans from unwarranted
surveillance by U.S. agencies such as the FBI.
To Appreciate the Dangers of the USA PATRIOT Act, We Should Take a
Moment to Revisit One of the Shameful Chapters in Recent History
that Led to Restrictions on the CIA.
Until the mid-1970's, both the CIA and the National Security
Agency ("NSA") illegally investigated Americans. Despite the
statutory provision in its charter prohibiting the CIA from
engaging in law enforcement or internal security functions (50
U.S.C. 403-3(d)(1)), the CIA spied on as many as seven thousand
Americans in Operation CHAOS. This operation in the 1960's and
early 1970's involved spying on people who opposed the war in
Vietnam, or who were student activists or were so-called black
nationalists. Operation CHAOS involved an extensive program of
information sharing from the FBI and other agencies to the CIA.
The CIA received all of the FBI's reports on the American peace
movement, which numbered over 1,000/month by June of 1970,
according to a Senate report issued by the Senate Select Committee
to Study Governmental Operations With Respect To Intelligence
Activities ("Church Committee Report"). The Church Committee
Report revealed how simple passive information sharing from other
agencies to the CIA became authorized spying and data collection
on lawful American political activity protected by the First
Amendment. Once CIA officials expressed interest in particular
types of information on American individuals and groups, other
federal and local agencies were persuaded to covertly spy on
citizens at the CIA's behest. The Church Committee reported:
The mechanics of the CHAOS operation, both in performing the
mission undertaken by the CIA and in servicing the FBI's
needs, involved the establishment of files and retention of
information on thousands of Americans.
To the extent that [the] information related to domestic
activity, its maintenance by the CIA, although perhaps not
itself the performance of an internal security function, is a
step toward the dangers of a domestic secret police against
which the prohibition of the charter sought to guard.
After these abuses were exposed, the CIA's domestic surveillance
activities and collection of information about Americans were
greatly curtailed. For example, the Foreign Intelligence
Surveillance Act made it clear that the Department of Justice
would have the leading role in gathering foreign intelligence in
the United States. The USA PATRIOT Act would tear down these
safeguards and once again permit the CIA to create dossiers on
constitutionally protected activities of Americans and eliminate
judicial review of such practices.
Sharing Information Developed in Criminal Proceedings
about Americans with the CIA
The "USA PATRIOT Act" permits the wide sharing of sensitive
information gathered in criminal investigations by law enforcement
agencies with intelligence agencies including the CIA and the NSA,
and other federal agencies including the INS, Secret Service, and
Department of Defense.
For example, Section 203(a) of the bill would permit law
enforcement agents to provide to the CIA foreign intelligence and
counterintelligence information revealed to a grand jury. No court
order would be required. In authorizing this flow of sensitive
information, Section 203(a) would re-define "foreign intelligence
information" for purposes of this section to permit more liberal
sharing of information about U.S. persons -- citizens and lawful
permanent residents of the United States.
As a result, the foreign intelligence information about Americans
that could be shared with the CIA need not be information that is
necessary to protect against attacks, or is necessary to the
national defense or security of the United States. This
"necessity" requirement of the Foreign Intelligence Surveillance
Act effectively operates to protect Americans from unwarranted
surveillance for "intelligence" as opposed to criminal purposes.
This requirement is eviscerated under the information sharing
provisions of the USA PATRIOT Act. In addition, the sharing of
grand jury information authorized by Section 203(a) is not limited
to information about the person being investigated. Thus, a
witness called before the grand jury to provide evidence against
the person being investigated, or about others, might be less
forthcoming if it is known that the supposedly secret information
could be shared with the CIA.
Section 203(b) would permit law enforcement officers to share with
the CIA intercepts of telephone and Internet conversations. No
court order would be necessary to authorize the sharing of this
sensitive information. This section also broadens the definition
of foreign intelligence information to include more information
about Americans. It includes no meaningful restrictions on
subsequent use of the recorded conversations. For example, there
is nothing in the bill that prevents this information from being
used to screen candidates who apply for government jobs. Also,
Section 203(b) does not prohibit the CIA from sharing with foreign
governments surveillance information gleaned from a criminal
investigation, even if sharing that information that could put at
risk members of a person's family who live abroad.
Section 203(d) broadly permits the sharing of any foreign
intelligence or counterintelligence information obtained as part
of a criminal investigation to be disclosed to the CIA and other
intelligence, defense and immigration authorities. No court order
would be required, and for purposes of this information sharing,
"foreign intelligence information" would be re-defined to permit
more sharing of information about Americans. Section 905 of the
bill mandates disclosure to the CIA of foreign intelligence
information obtained in connection with a criminal investigation,
but this section does not re-define "foreign intelligence
information." These proposals represent extraordinary extensions
of the current authorities of the foreign intelligence agencies,
including the CIA, to obtain information about Americans.
While some sharing of information may be appropriate in some
limited circumstances, it should only be done with strict
safeguards. These safeguards include protecting information about
U.S. persons from disclosure to the CIA, requiring court approval
for disclosure, limiting disclosure to foreign intelligence
information as defined in the Foreign Intelligence Surveillance
Act, limiting disclosure to foreign governments, and requiring
that disclosed information be marked to indicate how it was
obtained and how it can and cannot be used or disseminated. The
bill lacks all of these safeguards. As a result it may lead to the
very abuses that the Church Committee exposed decades ago.
Empowering the Director of Central Intelligence
To Manage Domestic Intelligence Gathering
Section 901 of the USA PATRIOT Act would empower the Director of
the Central Intelligence Agency ("DCI"), to establish the
priorities for the collection and dissemination of intelligence
information gathered in the U.S. He would exercise this power
while acting in his capacity as head of the intelligence
community. The Attorney General currently performs this function.
Though this provision includes language purporting to prohibit the
DCI from directing or undertaking electronic surveillance
operations, it includes no similar prohibition relating to
physical searches for intelligence purposes. More importantly,
Section 901 appears to contemplate that the DCI would be empowered
to identify to the Department of Justice and to the FBI potential
targets of intelligence surveillance in the United States,
including particular people and groups to be surveilled. Such a
power would be inherent to the ability to "establish requirements
and priorities" for the collection of foreign intelligence
information under the Foreign Intelligence Surveillance Act.
It amounts to a rather clear case of giving the CIA an enhanced
role in domestic intelligence gathering -- including the gathering
of intelligence about United States citizens -- in the U.S. It
also runs directly contrary to the statutory prohibition in the
CIA's charter barring it from engaging in internal security
functions (50 U.S.C. 403-3(d)(1)).
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