Last week an editorial appeared in the Balitmore Sun titled "Here come the thought police," which outlines the many reasons some privacy and civil liberties groups oppose Representative Jane Harman's (D-CA) Homegrown Terrorism Prevention Act (HR1995). At first glance, the bill overwhelmingly approved by the House in October appears safe, but many fear that it could lead to the criminalization of beliefs, racial or religious profiling, and unconstitutional restrictions on speech. The bill would create a national commission to examine the causes of violent radicalization, domestic terrorism and ideologically based violence in the U.S., and to make legislative recommendations. The editorial states:

Any social or economic reform is fair game. Have a march of 100 or 100,000 people to demand a reform - amnesty for illegal immigrants or overturning Roe v. Wade - and someone can perceive that to be a use of force to intimidate the people, courts or government. The bill defines "violent radicalization" as promoting an "extremist belief system." But American governments, state and national, have a long history of interpreting radical "belief systems" as inevitably leading to violence to facilitate change.

The American Civil Liberties Union (ACLU) has come out in opposition, out of concern that the bill could end up stifling dissent. Many consider the bill's language to be too broad and could even lead to censoring the Internet. The ACLU issued a press release stating; "As an organization dedicated to the principles of freedom of speech, we cannot in good conscience support this or any measure that might lead to censorship and persecution based solely on one's personal beliefs." In response, Harman sent a letter to the director of the ACLU's Washington Legislative office. Meanwhile, Susan Collins (R-ME), the ranking member of the Senate Homeland Security and Governmental Affairs ranking has a introduced companion measure to the House bill.

In July we brought attention to Executive Order 13, 438 which authorizes the government to seize the assets of "any person" who threatens the stability of Iraq and any person who provides assistance to such a person. The lack of clear standards to define what criteria will be used to determine when an entity poses a significant risk or what constitutes a threat to the peace or security of the Iraqi government leaves charities operating in Iraq vulnerable. Now a newly released Congressional Research Service (CRS) report highlights the broad nature of the Executive Order.

The issue is whether the executive order's application to anyone who provides "support" for a designated entity might affect U.S. persons inadvertently involved in some form of assistance, such as arranging transportation for, selling consumer goods to, or providing routine legal assistance to an entity which becomes blocked under the executive order. Could such U.S. persons find themselves designated under the authority of the executive order and thereby have all of their assets subject to blocking whether or not the assets have any nexus with the transaction with the blocked entity or with any foreign entity?

Read this blog at Secrecy News with the appropriate title, "Executive Order on Asset Seizure Casts a Wide Net."

The Ninth Circuit has issued an opinion in Al-Haramain Islamic Foundation v. Bush, returning the case to the District Court for further consideration. Al-Haramain, sued the government after receiving a document proving the Islamic charity was subject to warrantless surveillance. The government asserted the case should be dismissed based on the state secret privilege. The Ninth Circuit ruled that the subject matter of the case itself was not a state secret, but the document remains a state secret. The case will now return to the lower court to determine whether the Foreign Intelligence Surveillance Act (FISA) law preempted the state secrets privilege.

Interestingly the LA Times considered the ruling a victory for the Bush administration. Yes, the document was ruled a state secret, but the program itself was not, sending the case back to the district court.

The opinion states; "The court held that the Sealed Document was protected by the state secrets privilege and that its inadvertent disclosure did not alter its privileged nature, but decided that Al-Haramain would be permitted to file in camera affidavits attesting to the contents of the document based on the memories of lawyers who had received copies. . . . Nonetheless, our resolution of the state secrets issue as applied to the Sealed Document does not conclude the litigation."

After the RESTORE Act (HR 3773) was pulled from the House floor about a month ago, the House passed the bill with a vote of 227-189 after a Motion to Recommit was defeated. The House ignored a veto threat and passed the bill to amend the Foreign Intelligence Surveillance Act (FISA) hours after the Senate Judiciary Committee, also ignoring the veto threat, voted 10-9, to send their bill to the full Senate. The White House favors the bill as passed by the Senate Intelligence Committee.

The Senate Judiciary held a hearing to mark up the Senate Intelligence Committee's S.2248. The issue of telecommunications immunity proved to be so divisive that it was simply avoided. First the committee approved an amended version of the first title in the bill which deals with how surveillance is conducted. Senators were then unable to find any agreement on the more controversial second title, which grants retroactive legal immunity to telecommunications companies that helped the administration with its warrantless surveillance program. Committee Chairman Senator Patrick Leahy (D-VT) then offered reporting the bill out of committee with only the first title, which passed 10-9. The issue of immunity will now be taken up at a later date, as the bill moves to the floor as approved by the Intelligence committee and the version passed by the Judiciary will be considered as an amendment.

Update:CQ ($$) reports that the Senate Judiciary Committee had planned a continuation of yesterday's (Nov.15) meeting to approve what took place, advancing the bill without the telecom provision. There was some confusion whether a majority of members were actually present for that vote.

Read the story in the New York Times and the Washington Post.

While promising, the actions that occurred in the House and Senate further complicate any chances of invalidating the reckless Protect America Act passed in August; language reported out of the Judiciary committee compared to the Intelligence committee, along with the House's version, and the President's stated veto threats. It is questionable if any legislation is approved before the PAA expires in February.

The Washington Post has addressed a Council of Europe report, Europe's leading human rights watchdog organization, approved by their Legal Affairs Committee criticizing the way the United Nations and the European Union blacklist terrorist suspects. The report states that the method used to sanction individuals and organizations does not include any "procedures for an independent review of decisions taken, and for compensation for infringements of rights. Such a procedure is totally arbitrary and has no credibility whatsoever." The committee recommends that those who are sanctioned be allowed a fair trial with the ability to see the evidence against them, within a reasonable time and compensation for wrongful designation as a terrorist. Just as in the United States, cases are being taken to court, but the problems with the underlying regulations and laws have not been addressed.

The council's actions serve as recommendations to members of the 27-nation European Union. Approximately 370 individuals and 60 organizations worldwide have been blacklisted by the U.N. Security Council or the European Union, the investigation found. In addition to the freeze on their finances and the prohibition on travel, they have little recourse for getting delisted, according to Dick Marty, a Swiss legislator who led the investigation. . . . "The person or group concerned is usually neither informed of the request, nor given the possibility to be heard, nor even necessarily informed about the decision taken -- until he or she first attempts to cross a border or use a bank account."

The Senate Judiciary Committee was scheduled to consider the first title of Senator Leahy's substitute would eliminate a part of the bill that redefines the definition of electronic surveillance. It also strengthens the minimization procedures and clarifies that FISA is the only way the government can conduct electronic surveillance for foreign intelligence. The committee will now meet next Thursday to mark up the entire bill, including the provision that grants retroactive immunity to telecommunications companies. Reportedly the first part was only going to be considered today because the issue of retroactive immunity was still under debate.

The House Homeland Security Committee held a hearing today (Nov.8) titled "The Progress and Pitfalls of the Terrorist Watch List," to examine how the Terrorist Screening Center (TSC) watch list is being used and managed. This follows a hearing covering the same topic held in the Senate Homeland Security and Government Affairs Committee on Oct. 24. A Government Accountability Office (GAO) report was released at that time which concluded that the administration is not using the TSC list as effectively as it should be. The TSC list is rapidly growing in size to include about 860,000 names and is expected to soon go over a million. A recent USA Today article reported that 15,000 people wanted off the list. As Committee Chairman Bennie Thompson (D-MS) said, if there is no accountability with the watch lists, the American people will not trust it. "It will be viewed as a placebo, not a protection." From Thompson's opening remarks:

We can do better — and we have to do better — than to have a system that flags United States Congressmen and 2 year olds as potential terrorists. Every day, the watch list impacts real people who are traveling by air, land, and sea. An accurate watch list keeps our nation safe and keeps the bad guys out. An inaccurate and incomplete watch list creates more and more misidentifications — which in turn creates fear and frustration. The American people will support the watch list if there is accountability — if they are confident that mistakes are being fixed and there is a real redress process. If there is accountability, they will trust it's being done right, not fear that they're being monitored by Big Brother.

The Senate Judiciary Committee plans to mark up tomorrow (Nov. 8) S. 2248 the FISA Amendments Act to reform the Foreign Intelligence Surveillance Act (FISA). One of the most contentious issues is whether to give retroactive immunity to telecommunications companies that gave the administration records of U.S. residents without warrants from the FISA court. Last week the Judiciary Committee had a hearing examining the issue, and during which many on the committee suggested that they would not support immunity. The committee will have to address other issues as well, such as whether a warrant should be required to spy on U.S. citizens abroad and how much oversight should be granted to the FISA court. Read this article on the FISA Amendments Act from the latest Watcher.