posted 01-26-2004 10:00 PM            

Courts: Federal jurist rules portions of the law are unconstitutional. Decision could affect pending legislation.

By HENRY WEINSTEIN
TIMES LEGAL AFFAIRS WRITER

October 5, 2001

A Los Angeles federal judge has ruled that portions of the 1996 federal anti-terrorism law are unconstitutional--a ruling with potential ramifications for new legislation introduced after the Sept. 11 terrorist attacks.

In a decision made public Thursday, U.S. District Judge Audrey B. Collins said that the 1996 law's prohibition against providing "training" and "personnel" to groups designated as "foreign terrorist organizations" by the U.S. State Department are too vague to be constitutionally acceptable.

Collins' decision marks the second time she has struck down parts of the 1996 law, enacted the year after Timothy J. McVeigh bombed the Oklahoma City federal building, killing 166 people. The law permits the secretary of State, in consultation with the attorney general and the secretary of the Treasury, to designate a group as a foreign terrorist organization if, among other things, the terrorist activity "threatens the security of United States nationals or the national security of the U.S."

The statute defines "terrorist activity" as "an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time."

The judge's latest decision was praised by a lawyer who represented the plaintiffs challenging the law.

"This case stands for the proposition that the government cannot broadly ban all support to 'terrorist organizations,' and that constitutional restrictions do apply even in the war against terrorism," said Georgetown University law professor David Cole.

Cole said the immigration provisions of legislation proposed by Atty. Gen. John Ashcroft, now under consideration in Congress, "would, among other things, make aliens deportable for providing 'training' to terrorist organizations. That aspect of the bill, at least, would be unconstitutional under this ruling."

The Justice Department had no immediate comment on the ruling.

In 1997, Secretary of State Madeline K. Albright designated 30 groups as terrorist organizations, including the Kurdistan Workers Party (PKK), which opposes the Turkish government, and the Liberation Tigers of Tamil Eelam (LTTE), which opposes the Sri Lankan government.

In 1998, the anti-terror law was challenged in U.S. District Court in Los Angeles by several individuals and groups, including the Los Angeles-based Humanitarian Law Project--which works with dissident groups, including the PKK, in several countries--and the World Tamil Coordinating Committee, which works with the LTTE.

That same year, Collins upheld much of the law, including its ban on raising funds for terrorist groups.

However, Collins agreed with the contentions of plaintiffs, including that a section of the law that makes it criminal to provide "training" or "personnel" to terrorist groups was impermissibly vague.

The U.S. 9th Circuit Court of Appeals upheld her rulings last year, saying that the terms were not "sufficiently clear as to allow persons of ordinary intelligence a reasonable opportunity to know what was prohibited."

Last June, the Justice Department modified portions of the manual for U.S. attorneys' offices to narrowly define "personnel" and "training." The manual now defines "personnel" as individuals who "work under the foreign entity's direction or control." It defines "training" as "knowingly provid[ing] instruction to the organization designed to impart one or more specific skills." Justice Department attorneys then asked Collins to reverse her earlier decision.

But Collins, in her decision released Thursday, said the new definitions "do not change the language of the statute," and the guidelines do not bar any prosecutions.

"By its own terms, the [U.S. attorneys' manual] is nonbinding, unenforceable and can be amended at any time," Collins wrote. "Because any individual United States attorney could choose to define 'training' and 'personnel' more broadly and because the Department of Justice could amend the definitions in the [manual] at any time, the current version of the [manual] does not eliminate the threat of prosecution," Collins added.

Cole said the term "training" was too vague because it could be construed to mean any kind of training.

"Our clients wanted to do training in human rights advocacy, not training in how to use explosives," Cole said.

Ralph Fertig, a retired administrative law judge with the Equal Employment Opportunity Commission in Los Angeles, said Collins' ruling was a relief. Fertig is one of the plaintiffs and has been working with the Humanitarian Law Project on behalf of Kurds living in Turkey since 1991.

Collins stated in her ruling that Fertig and others have conducted fact-finding investigations in Turkey and assert that the Turkish government has committed extensive human rights violations against the Kurds.

"Applying international law principles, they have concluded that the PKK is a party to an armed conflict governed by the Geneva Conventions and Protocols and, therefore, is not a terrorist organization under international law," Collins wrote.

Fertig said he felt that the decision would permit the group to continue to aid the PKK in lobbying members of Congress and the United Nations about conditions in Turkey.

"The PKK has done some things with which we take great exception, but we think they are a liberation force, not a terrorist group," Fertig said. "We would not be working with them if we thought they were a terrorist group."

In June 1999, Kurdish rebel leader Abdullah Ocalan, leader of the PKK, was convicted of treason in Turkey and sentenced to death. The verdict is being appealed.

Representatives of the Tamil groups could not be reached for comment.

For information about reprinting this article, go to http://www.lats.com/rights/register.htm

posted 01-26-2004 10:24 PM            

Yes, the Honorable Judge Collins is a gift! She's a trailblazer and a brave patriot! May she be the first of many!

bc

posted 01-29-2004 10:24 PM            

CURT ANDERSON, Associated Press Writer
Thursday, January 29, 2004

http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2004/01/29/national1227EST0580.DTL
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(01-29) 14:47 PST WASHINGTON (AP) --

The Bush administration intensified its defense of the anti-terrorism Patriot Act on Thursday, threatening to veto legislation in Congress that would scale back key provisions.

Attorney General John Ashcroft, in a letter to Senate leaders, said the changes proposed in the Security and Freedom Ensured Act, known as SAFE, would "undermine our ongoing campaign to detect and prevent catastrophic attacks."

Ashcroft told reporters that President Bush would veto the bill if it reached his desk.

The threat came a week after Bush, in his State of the Union address, urged Congress to reauthorize the Patriot Act before it expires in 2005. A few months earlier, Ashcroft embarked on a 32-city speaking tour in a bid to answer critics who contend the law threatens civil liberties and privacy rights.

Ashcroft said the political offensive "reflects the stakes America has in the war on terror. When American lives are at stake, we need to have all the capacities to disrupt and to defeat terrorism that we've been successfully using over the last 28 months."

The Patriot Act, passed shortly after the Sept. 11, 2001, terror attacks, expanded the government's wiretap and other surveillance authority, removed barriers between FBI and CIA information-sharing, and provided more tools for terror finance investigations.

Anthony Romero, executive director of the American Civil Liberties Union and a staunch critic of the new law, said the veto threat shows that the Bush administration is on the defensive. The ACLU has filed a lawsuit in federal court challenging a key portion of the law, and 241 state and local governments also have gone on record opposing it.

"The attorney general's attack on the SAFE Act shows how out of step the Bush administration is with growing national concern over the Patriot Act," Romero said.

Earlier this month in Los Angeles, a federal judge issued the first court ruling striking down a portion of the law. U.S. District Judge Audrey Collins ruled that provisions barring "expert advice or assistance" to groups designated foreign terrorist organizations was too vague, threatening First and Fifth Amendment rights.

The SAFE Act, which has not yet had a hearing in either the House or Senate, was introduced last fall by Sens. Larry Craig, R-Idaho; Dick Durbin, D-Ill.; and other lawmakers of both parties who say the Patriot Act has gone too far.

"Attorney General Ashcroft's response today is an unfortunate overreaction to a reasoned and measured effort to mend the Patriot Act," Durbin said Thursday. "I believe it is possible to combat terrorism and preserve our individual freedoms at the same time.

"This legislation restores the necessary checks and balances to the system."

The bill would modify so-called "sneak and peek" search warrants that allow for indefinitely delayed notification when a person's property is searched, mandating such notice within a week's time.

In addition, warrants for roving wiretaps used to monitor a suspect's multiple cell phones would have to make sure the target was positively identified and was present at the site being monitored before information could be collected.

The legislation also would reinstate standards in place prior to passage of the Patriot Act regarding library and other business records by forcing the FBI to show it had reason to believe the person involved was a suspected terrorist or spy. The measure would impose expiration dates on nationwide search warrants and other Patriot Act terms, providing for congressional review.

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The bill is S. 1709.
On the Net:

Congress: thomas.loc.gov

Justice Department: www.usdoj.gov

posted 02-01-2004 10:32 PM            

http://www.globetechnology.com/servlet/story/RTGAM.20040130.gtspyjan30/BNStory/Techn ology/

Surveillance powers should stand, U.S. officials say
By Declan McCullagh
CNET

The Bush administration is warning Congress not to tinker with the Internet surveillance powers that the USA Patriot Act awarded to federal police.

In a four-page letter to the Senate on Thursday, Attorney General John Ashcroft said that defanging the controversial law, which has been criticized by every major Democratic presidential contender, would "undermine our ongoing campaign to detect and prevent catastrophic terrorist attacks."

Were Congress to vote to amend the USA Patriot Act, Ashcroft indicated, President Bush would veto the bill.

Mr. Ashcroft was responding to a proposal in the Senate called the Security and Freedom Ensured Act (Safe), which would amend the USA Patriot Act by slapping limits on current police practices relating to surveillance and search warrants. It is sponsored by Republican Sen. Larry Craig of Idaho and has 12 co-sponsors, including two other Republicans.

Many portions of the Safe Act affect the ability of federal police to conduct Internet surveillance against not only terrorists but also suspected perpetrators of a broad range of drug-related, computer hacking and white collar crimes. The measure would amend the USA Patriot Act to require, for instance, that electronic-surveillance orders specify either the identity or location of the suspect and that the person be there at the time — a departure from current practice.

"This is an overheated attack on a very modest bill," said Tim Edgar, legislative counsel for the American Civil Liberties Union. "It shows that the attorney general is afraid of the bipartisan momentum that is going forward to fix parts of the Patriot Act."

Ashcroft identifies no terrorist plots that were thwarted by the existence of the USA Patriot Act, Mr. Edgar said. "It doesn't contain a single real example of why passage of the Safe Act would impede antiterrorism efforts. It's based entirely on speculation and misleading, slanted legal analysis."

Another section of the Safe Act that Mr. Ashcroft criticized would increase privacy protections for library patrons who use public computers for e-mail and Web browsing.

"The Safe Act would make it more difficult, in some circumstances, to obtain information about e-mails sent from public computer terminals at libraries than it would be to obtain the same information about e-mails sent from home computers," Mr. Ashcroft said. "Ironically, it would extend a greater degree of privacy to activities that occur in a public place than to those taking place in a home."

In Mr. Bush's State of the Union address earlier this month, the president called on Congress to renew the USA Patriot Act. Some portions — though not all — expire Dec. 31.

When enacting the USA Patriot Act in a hurried response to the Sept. 11, 2001, terrorist attacks, Congress made it much easier for federal police to obtain "pen register" and "trap and trace" orders that could identify a suspect's e-mail correspondence and Web sites visited. The Safe Act would permit those portions of the law to expire at the end of next year. But Mr. Ashcroft said: "It will still be needed by law enforcement after Dec. 31, 2005, as the Internet is in no danger of disappearing."