See the minimalist homepage of the Texas Homeland Security Task Force or the DPS Terrorism/Domestic Preparedness site. The Texas Observer covered the Task Force in a recent article.

 

 

 

 

 

ACLU of Texas Testimony to

The Texas Homeland Security Task Force

 

 

 

 

By Will Harrell,

Executive Director, ACLU of Texas

 

Oral Presentation by Dean John Brittain

Thurgood Marshall School of Law, Texas Southern University

Member, ACLU National Board of Directors

 

 

December 17, 2001

 

 

 

With research and editorial assistance from Scott Henson.  Karen Heikkala,

Ann del Llano, Kathy Mitchell and Doug Foxvog also contributed to this testimony.

 

 

What We Are Fighting To Protect:

(A reference to key amendments)

 

American soldiers are fighting in Afghanistan today, President George Bush and others have said, because our enemies object to American freedoms and envy or despise our democratic rights and institutions. Protecting those freedoms, then, in these worrisome times, becomes even more important, because their destruction would surely signal our enemies’ victory. 

 

We list here several Constitutionally guaranteed freedoms ACLU of Texas hopes this Task Force will be especially mindful of as it prepares its recommendations to the people of Texas:

 

·        First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

 

·        Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

·        Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

·        Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

 

·        Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 

·        Fourteenth Amendment, Section One: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Executive Summary

 

The ACLU of Texas deeply appreciates the opportunity to provide testimony to the Texas Homeland Security Task Force.  Like every American, we were left aghast, horrified and saddened at the callous disregard for humanity displayed by terrorists on September 11. President Bush has stated that the attacks were aimed at America’s democratic values and individual freedoms. If that is the case, then it’s more important than ever that America’s leaders stand up to defend those uniquely American freedoms embodied in the US Constitution and the Bill of Rights.

 

Unfortunately, in recent months, the rhetoric extolling America’s freedoms has not always been matched by their courageous defense. A few voices – such as Representative Bob Barr or Senator Russ Feingold – have consistently upheld the values of liberty even as a political juggernaut was underway to undermine them. We pray that the members of this task force will follow those leaders’ brave example and forthrightly insist that Texas’, and America’s, security does not have to come at the expense of our freedoms.

 

  • Learn from history and avoid unconstitutional overreaching that we later will regret.
  • Consolidate Texas wiretapping authority at DPS.
  • Limit state and local intelligence gathering to criminal investigations.
  • Maintain Texans’ key privacy protections.
  • De-emphasize sharing information about immigration status with the INS.
  • Maintain commitment to Texas’ racial profiling ban.
  • Avoid facial recognition systems or other such ineffective technology.
  • Maintain judicial role in and current standards for warrants for Internet information.
  • Reject secret searches as “unreasonable” and violative of the Fourth Amendment.
  • Retain judicial oversight of search warrants and present jurisdictional limits.
  • Keep search warrant affidavits public after they’re executed.
  • Protect the Public Information Act.
  • Ensure enforcement of the Vienna Convention for non-citizens.

 

 

ACLU of Texas would like to make it clear that, like all Americans, we are deeply troubled that Osama bin Laden's henchmen could plot mass murder in the shadow of liberty, and we too want to live in a nation free from fear.

 

However, we are committed to defending the fundamental freedoms enshrined in the Bill of Rights and the Texas Constitution. Benjamin Franklin once wrote that, “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” The ACLU of Texas takes this warning seriously, and will stand firm against any proposals that undermine freedom in the name of security.

 

 An Historical Context

 

ACLU would ask the members of this task force, in formulating your recommendations, to be mindful not only of the immediate threats and dangers demonstrated to you by agency staff, law enforcement and other public custodians of Texans’ safety, but also of how History will view your actions in hindsight.

 

Throughout American history, government radically challenged Americans’ constitutional freedoms during wartime, only to nearly universally regret those actions when war’s dust settled. Attorney General Ashcroft’s PATRIOT Act, by our unofficial count, marks the seventh major cycle of wartime attacks on individual freedoms in the name of National Security. Often, as with the Japanese internments, freedom’s curtailment was rolled back after a war had ended. But sometimes new institutions were created to nurture and expand repressive systems designed in wartime. That result is what this Task Force should avoid.

 

The federal PATRIOT Act stripped away many of this nation’s most basic freedoms. “Sneak and Peak” searches now allow federal agents to perform searches as anonymous break-ins that amount to little more than black bag jobs. Federal investigators may now easily obtain all of email header information with merely a signature and no judicial oversight. Similarly, the FBI may identify every web page you’ve visited without proving probable cause to a judge. Confidential documents, from student records to federal grand jury minutes (once sacrosanct bastions of privacy), are now fair game for government agencies up to and including the CIA. The government continues to hold hundreds of people in indefinite detention on a variety of warrants, and refuses to release even the names of those in custody. Federal investigators have asked Texas law enforcement to assist with interrogations of hundreds more based on their national origin, although racial profiling is strictly prohibited in this state.  (For more information on Congressional infringement on civil liberties since issues surrounding the 9-11 crisis, see http://www.aclu.org.)  

 

ACLU believes our nation will come to collectively regret Bush and Ashcroft’s rash, ill-considered expansion of law enforcement power, as we have come to do many times in the past. 

 

In 1798, reacting to tensions with France that amounted, nearly, to an undeclared war, Congress authorized the President to deport non-citizens and made it a crime to publish criticism of the president. Two dozen people were jailed for criticizing President John Adams, but Thomas Jefferson pardoned all those convicted under the “Alien and Sedition Acts” after his 1800 election.

 

During the Civil War, Lincoln ordered border and southern states under martial law and suspended the writ of habeas corpus. Thirteen thousand people were detained without trial. An 1861 Supreme Court ruling called Ex parte Merryman held a Union general in contempt for refusing to bring a prisoner to trial. But Lincoln ignored the judiciary and held prisoners as he saw fit.

 

After the United States entered the First World War, Congress passed the Espionage Act in 1917 and the Sedition Act in 1918. The former made it illegal to interfere with recruitment of soldiers; the latter made it a crime to criticize the government. Future presidential candidate Eugene Debs numbered among those imprisoned for making antiwar speeches. In 1919, the Supreme Court upheld the Espionage Act. "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight," wrote Civil War veteran Justice Oliver Wendell Holmes.

 

Before World War II, the Alien Registration Act of 1940, also known as the Smith Act, required non-citizens to register annually with the feds and made it a crime to call for the violent overthrow of the government.  After the Japanese attacked Pearl Harbor in 1941, Roosevelt placed Hawaii under martial law and substituted civil courts with military tribunals. After the war ended, the Supreme Court ruled Roosevelt’s action unconstitutional.

In 1942, Congress authorized internment of Japanese-Americans, as well as some German and Italian Americans, due to fears that they might act as spies or saboteurs. About 112,000 people -- including 70,000 American citizens -- were ordered to detention camps. In 1944 the Supreme Court upheld the legality of internment, but in 1988 Ronald Reagan signed a law that apologized for the internment policy and paid $20,000 to each person who had been held in the camps.

 

After WWII through the Korean War, a new wave of political repression took place under the rubric of National Security. The results were Joseph McCarthy’s famed blacklist and the authoritarian abuses of House Un-American Activities Committee. One can forget that the dark nuclear urgency of the Russian threat matched the intensity, even, of the public’s fear of 9-11-style terrorism today.  But even such a grave threat didn’t save McCarthyism from History’s near-universal disapprobation.

 

The COINTELPRO operations (stands for “Counterintelligence Program”) against domestic activists in the 1960s and ‘70s during the Vietnam War constituted the sixth wave of government interference with constitutionally protected wartime dissent. Targeting civil rights activists, anti-war groups, and militant ethnic organizations like the Black Panthers, undercover intelligence officers infiltrated with aims to spy, thwart and sabotage. After their activities were made public in 1971, the FBI formally ended the operation. But since then FBI operations similar to COINTELPRO have been mounted against the American Indian Movement, Earth First!, and the Committee in Solidarity with the People of El Salvador.

 

All of these wartime attacks on Liberty were regrettable, even “un-American” in the sense that they fly in the face of the uniquely American values embodied in the US Constitution and Bill of Rights.  Each episode came to represent America’s failure to live up to its own values, its raison d’etre. But more than reprehensible, these measures were also unnecessary and counterproductive, never decisive. The benefits of American civil rights and liberties inevitably outweigh any arguments for their constraint, even during war’s darkest days. These are History’s lessons.

 

Consolidate Wiretapping Authority

 

The federal PATRIOT Act expanded wiretapping authority of all kinds for federal law enforcement agents. But such measures are not needed in Texas. Indeed, wiretapping authority here had already been increased and decentralized before 9-11.

 

Re-consolidate wiretapping authority within the DPS Special Crimes Services Division. Recent changes in state law have left wiretapping in Texas an unwieldy, decentralized affair, and made statewide coordination or information sharing more difficult.

 

The 75th and 77th Legislatures decentralized wiretapping for Texas law enforcement, essentially pushing authority and oversight of the practice “downstream” under jurisdiction of local District Attorneys instead of the Texas Department of Public Safety Special Crimes Services Division, which had regulated and operated all wiretaps in Texas for many decades. This means there’s no longer any centralized authority for active wiretaps in Texas at any given time, and no legally required reporting about local wiretaps to the state. Re-centralizing wiretap services at DPS would provide better controls for the state and more efficient information sharing between local, state and federal law enforcement agencies.

 

The requirement should be reinstated that a DPS officer be present at all times during government wiretapping. Under the new law, non-law enforcement personnel may now install wiretaps in Texas, and DPS is no longer involved. The requirement for direct DPS oversight provided increased accountability, and ensured that personnel from a single agency would have knowledge of all Texas wiretaps, improving information sharing.

 

Other recent expansions of federal wiretapping authority would be redundant here. In Texas, “trap and trace” information (collecting phone numbers dialed in and out of a line) can already be obtained even if the subject is not suspected of a criminal offense, and can be used to prosecute misdemeanors as well as felonies. Police can already track the Global Positioning information in cars (such as the much-advertised On-Star system) without a judge finding “probable cause.” And although information illegally gathered by law enforcement is inadmissible in criminal court, in Texas is it usable in civil actions, an innovation overlooked even by the authors of the PATRIOT Act.

 

ACLU suggests that on the question of expanding wiretap authority, the Texas prosecutor and law enforcement lobby simply beat Attorney General Ashcroft to the punch: There’s no need to replicate federal expansion of wiretapping authority at the state level in Texas – in many ways, Ashcroft’s PATRIOT Act replicates the Texas statute. While we would hope that both Texans’ privacy and the role of the judiciary would be respected in any additional revisions of the wiretapping statutes, from ACLU’s perspective, opposing additional expansions of wiretapping authority in Texas is like closing the barn door after the horse has run away.

 

We urge you  to focus on the one area where the needs of Security and Liberty happily coincide: the Task Force should recommend the re-centralization of Texas wiretapping authority with the DPS Special Crimes Services Unit, to enhance both accountability and communication.

 

Intelligence Gathering by State and Local Law Enforcement

 

At the first public meeting of the Texas Homeland Security Task Force, an official announced the Department of Public Safety was "back in the intelligence business." The DPS Special Crimes Service Unit has already received $200,000 of Governor Perry’s announced $1.2 million grant to train local law enforcement agencies in intelligence operations. We also noted this Task Force’s initial interim recommendations included "funding of additional personnel and training" for the Special Crimes Service Unit. 

 

The expansion of domestic counterintelligence activities by state and local law enforcement should be cause for concern to anybody who cares about preserving American democratic freedoms. ACLU would respectfully remind this Task Force of some of the abuses of domestic intelligence gathering in this nation’s recent past.

 

"COINTELPRO" was an FBI acronym for a series of covert action programs directed against domestic political groups from the mid 1950's into the 1970's.  In these programs, the Bureau routinely went beyond the collection of intelligence to secret action designed to "disrupt" and "neutralize" target groups and individuals.  The techniques were adopted wholesale from wartime counterintelligence, and included degrading (sending anonymous poison pen letters intended to break up marriages), dangerous (encouraging gang warfare and falsely labeling members of a violent group as police informers), and illegal (blackmailing someone to commit suicide to prevent disclosure) activities.  Agents provocateurs proposed illegal activities, instructed peaceful groups in criminal techniques, and provided equipment for engaging in specific criminal acts.   Although the programs were officially closed down in the 1970s, the techniques have still been secretly used by Federal, State, and local authorities.  Such activities are considered by some to be "COINTELPRO" activities even though they are not part of the official (but secret) FBI programs so named.

Major studies of COINTELPRO programs were conducted by the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (the Church Committee) and by the House Select Committee on Intelligence (the Pike Committee) in 1975 and 1976. 

These studies recorded thousands of actions directed against domestic political groups in addition to spying on the groups.  Programs against political organizations lasted for years, even when no evidence of criminal activity was found.  Activities taken against domestic political groups included: spying on the groups to report membership, donor lists, political campaign plans, and plans for activities protected by the first amendment (gathering, petitioning for redress of grievances, publishing); sowing dissention in a group to cause it to break up; advocating illegal activity by the group; training the group in illegal activity; stirring up violence-prone groups against activists;  contacting employers to get people fired or transferred; contacting sponsoring organizations to encourage them to stop sponsorship; falsely claiming that a target is cheating on a spouse, embezzling from the group, is slandering the group, or is an informer; blackmailing people; developing objectionable publications (sexist, racist, ...) ostensibly  from the group; encouraging IRS audits of individuals; and numerous other disruptive activities.

These ignominious policies have not been the exclusive province of either Republicans or Democrats. While President Richard Nixon notoriously employed COINTELPRO services, under Bill Clinton the FBI apparently spied on the anti-corporate protesters who rocked the Seattle WTO conference, and illegally shared their files about GOP political operatives with the president’s staff.

 

The FBI is not the only government entity which has spied on domestic political groups.  The Army, the CIA (CAOS program), the NSA, the IRS, and even the Secret Service (among Federal agencies) have  been reported by the press to have been involved in such activities.

 
State and local police forces as well as campus police are well known to have engaged in such activities at least since the 1930s.  As recently as two years ago, when Henry Kissinger was scheduled to come to the University of Texas at Austin to give a speech, a UTPD undercover policewoman infiltrated organizing activities in conjunction with his appearance.  The administration then issued a public statement attacking the protestors which included information that came directly from her surveillance.

The combination of spying on political groups and taking covert actions against those groups has been called "domestic intelligence."  This involves information gathering and record keeping by law enforcement agencies which may not be related to a specific crime but is directed at groups and people engaged in political activity. Not only are “intelligence” operations generally counterproductive to security – at least to the extent they are aimed not at criminal but political and/or social activity – but in the long run they sour hard-won trust relationships between law enforcement and the communities they serve.

Undercover investigation of a group is certainly appropriate when there is a reasonable expectation that a serious crime has been committed or is being planned by a specific individual or group.  However, collecting and storing general information on activists because it conceivably could be useful in the future is illegitimate domestic intelligence.  Undercover activities should be permissible only when there is an explicit law enforcement justification for every investigation.  Such domestic intelligence gathering is legitimate, while investigations into people's political activities without any real suspicion of criminal activity is not.

The Church Committee concluded that "[m]any of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that.  The unexpressed major premise of the programs was that a law enforcement agency has the duty to do whatever is necessary to combat perceived threats to the existing social and political order. ... The American people need to be assured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers threats to the established order.  Only a combination of legislative prohibition and Departmental control can guarantee that COINTELPRO will not happen again."

ACLU strongly urges this Task Force to recommend against involving state and local law enforcement in undercover anti-terrorism intelligence operations without a reasonable belief that a serious crime has been committed or is being planned by a specific individual or group. And we hope you’ll affirm the Church Committee’s high-minded commitment to eliminating law enforcement by “dirty tricks” on American soil.

 

Respect Privacy: Limit Information Sharing

 

The federal PATRIOT Act authorized a wide range of information sharing between government agencies beyond what has ever been allowed before. School records, federal grand jury transcripts – areas that formerly were great bastions of American privacy have been opened up for perusal by public employees from the FBI to the INS to the CIA and the rest of the national security apparatus. This creates real and immediate concerns that Americans’ privacy rights may already have eroded beyond any acceptable level.

 

The ACLU of Texas would urge you not to compound this federal error.  To the extent that Texas has authority to retain existing privacy protections for school records, medical records, grand jury transcripts and other personal confidentialities, we should do so.

 

In all these cases, individual privacy protections may already be broken by a court order, and mechanisms exist for prosecutors to access school, medical, and other records when they can demonstrate a compelling need. That authority is sufficient for any legitimate investigative purpose. And “sharing” such information among agencies as a general policy, instead of for a specific, court-supervised purpose, invites abuses and illegitimate uses of the information that would be difficult to track or correct.

 

Two specific cases where ACLU believes that information sharing is counterproductive are sharing information about immigration status and revealing Texas grand jury transcripts. 

 

During the 77th Texas Legislature, the Texas House of Representatives considered an amendment that would have required DPS to share information about drivers’ license applicants’ immigration status with the federal Immigration and Naturalization Service. During debate over that amendment, some representatives expressed strong concerns that the policy smacked of “Big Brother” and that it would sacrifice the goal of road safety for the goal of immigration enforcement. The ACLU agrees with that position. The amendment was ultimately withdrawn for lack of support.

 

Yet if the state acquiesces to federal demands for information sharing, any number of Texas agencies could become unwitting enforcement agents for the INS – exactly the kind of thing the Texas House of Representatives wanted to avoid. A recent federal announcement that immigration status information for 314,000 people will be placed in the nation’s Criminal databank will probably harm few if any terrorists, but it could flood police departments with tens of thousands of working immigrants, especially in Texas.

 

In the case of grand jury transcripts, the ACLU, NAACP, LULAC, the criminal defense bar and others concerned with constitutional rights have supported in the past making grand jury transcripts public after the grand jury’s term has expired. In the 76th and 77th Texas Legislatures, such a bill was sponsored by Houston Rep. Harold Dutton, but was soundly defeated. Now, though, there will be pressure on the state to share Texas grand jury information with federal law enforcement just like the PATRIOT Act authorized for federal grand juries. The ACLU of Texas doesn’t necessarily oppose sharing that information, but only if the information is made public like regular court pleadings, or at least made available to the criminal defendant, so that all affected parties can have access to the information. Grand jury information that’s not available to a criminal defendant should not be given to federal law enforcement agencies that may prosecute that defendant in the future.

 

 

Racial Profiling: Don’t Do It

 

To its great credit, the Texas Legislature this spring passed SB 1074 by Sen. Royce West which banned racial profiling and required each Texas police department to develop a “detailed written policy” proscribing the practice. Under the new law, “racial profiling” means “a law enforcement-initiated action based on an individual’s race, ethnicity or national origin rather than on the individual’s behavior or on information identifying the individual as having engaged in a criminal activity.”

 

ACLU strongly supports that definition and hopes the Task Force will recommend that the racial profiling ban continue to be enforced in all Texas anti-terrorism law enforcement activity. Where links to terrorism exist, they should be vigorously pursued. But Middle Eastern or Muslim communities in general should not be targeted.

 

When it was written, the authors of SB 1074 believed the primary beneficiaries would be blacks and Latinos. But today the greater danger obviously lies with people from southwest Asia. That shift in emphasis does not mitigate the necessity of the racial profiling ban.

 

The reasons for banning racial profiling go beyond any pie-in-the-sky idealism, but are pragmatic. Historically, racial profiling generates distrust of law enforcement in the targeted communities. Then when their help is required in a criminal investigation, relationships between those communities and law enforcement may have deteriorated beyond repair.

 

That’s why, at a time when the federal government has launched the largest man-hunt in history to track down suspected terrorists, it’s more important than ever that the relationship between law enforcement and minority communities remains positive, based on trust and mutual goals. Racial profiling tactics or the threat of sharing immigration status information with the INS will impede the investigation by providing incentives for silence that are unrelated to the criminal investigation. In pursuing terrorists, our eyes must remain always on the prize and avoid distractions based on prejudice or xenophobia.

 

Facial Recognition Technology

 

It is important that any security measures Texas implements are actually effective, not just for show. Now is not the time to lessen our vigilance by creating a false sense of security or to waste precious financial or manpower resources on inefficient tactics.

 

With that in mind, ACLU believes the rush towards using “facial recognition technology” in airports and at public events (such as the last Superbowl) is a mistake, and one that Texas should not replicate.

 

Studies by the Department of Defense and the National Institute of Standards and Technology found very high rates of error with facial recognition technology, even when it was used under ideal conditions such as subjects staring directly into the camera under bright lights.  They found high rates of both false positives – in which the system reported a match where none existed – and false negatives, where the technology failed to recognize persons that were in the database. This indicates that a high proportion of suspects included in the photo database would be missed, while at the same time many innocent people would be stopped, questioned and detained.

 

According to the September 27 Wall Street Journal, Director of the National Biometric Test Center at San Jose State University in California,  Jim Wayman, reported that the available studies show a failure rate of one third in the very best commercially available systems.

 

Facial recognition systems have trouble recognizing the effects of aging, changes in hairstyle or facial hair, and such simple changes as weight gain or loss. Simply smiling can foil a positive match. And simple disguises can easily be employed to fool the system.  Other factors known to further increase the inaccuracies of facial recognition systems are differences in lighting and camera angles, as well as the fact that individuals are not posing for photos, but are in bustling airports or border crossings.

 

Visionics Corp. of Jersey City, N.J., is one of the top manufacturers of these systems. The CEO himself, Joseph Atick, admits that most of their company’s relevant statistics come from their laboratory settings. There is no data to prove that facial recognition systems work at acceptable rates in real-world situations.

 

If this were a technology we could rely upon for accurate results, then it would be worthwhile to discuss here the problematic privacy implications – its potential uses for non-terrorist purposes as mundane as enforcing parking fines or identifying dead-beat dads. But it is not necessary to make those arguments, because the technology presently cannot deliver accurate results. 

 

Among the several government agencies that have used facial recognition systems and given it up because of its inability to do the job is the Immigration and Naturalization service. They spent millions in a pilot program using video cameras and computer databases to identify known illegal and criminal aliens, terrorists, drug traffickers and other persons of special interest to the US Government in cars at the Mexico-US border.  The program was scrapped because it simply didn’t work as advertised. If the INS has rejected its use at our borders, where we arguably most need effective security, it makes little sense for us to pursue it in Texas airports or anywhere else.

Cyberliberties: Internet Privacy in the Post-9-11 Era

 

Texans value their privacy rights, and advocates for privacy in Texas range from the very conservative to very liberal and a whole lot of folks in between. But statutory protection of Internet privacy has had a hard time – even before September 11 – keeping up with the ability of government to intercept and monitor Internet communications.

 

The PATRIOT Act extends a very low threshold of proof for federal agents’ access to information about Internet communications that is far more revealing than “trap and trace” information from a phone. To get such an order, law enforcement must simply certify to a judge –  who must grant the order – that the information to be obtained is "relevant to an ongoing criminal investigation." This is a very low level of proof, far less than probable cause. The federal provision apparently applies to law enforcement efforts to determine what websites a person had visited, which is like giving law enforcement the power – based only on its own certification –  to require the librarian to report on the books you had perused while visiting the public library. Thus the law extends a low standard of proof –  far less than probable cause –  for agents to view actual "content" information.

 

We believe that to extend similar sweeping authority to monitor Internet communications to state and local law enforcement would invite widespread abuse. Already Texas peace officers can gain such information merely by going before a judge and meeting the traditional “probable cause” standard. There’s just no demonstrated, pressing need for police and sheriff’s departments to search beyond those historically approved circumstances. Certainly no state and local investigation of the September 11 attacks would justify expanding that authority – all those warrants will inevitably be federal and the PATRIOT Act would apply.

 

 

Search and Seizure Issues

 

The federal PATRIOT Act expanded FBI search and seizure authority in ways that would be unwise and unconstitutional to replicate in Texas. Indeed some of them – for example secret “sneak and peak” searches, which amount to little more than government-sponsored burglaries – ACLU believes are not even constitutional for federal agents, though it will take some time for cases to be brought and case law to be established.

 

ACLU believes that present search and seizure authority is wholly adequate for Texas law enforcement officers, and should not be expanded. Unlike many federal agents, most Texas police officers’ time isn’t spent combating terrorism, but in the mundane but critical task of enforcing Texas’ myriad other criminal statutes. There, all the old standards and rules should still apply.

 

However, we believe that some in Texas law enforcement may seize upon this opportunity to do away with important fourth amendment protections which they consider bothersome. We ask that you stand firm against such requests.

 

For example, as mentioned above, the PATRIOT Act provides for secret searches pertaining to criminal suspects, but without investigators being required to demonstrate probable cause. Some Texas peace officers might also like such authority, but we ask you to please reject this model. Secret searches bring seem more apropos of the old repressive security apparatus under Soviet Communism or other totalitarian regimes, not the acknowledged leader of the free world. Without over dramatizing the case, we at ACLU can only conclude that years from now our children and historians will look on such requests with disdain, wondering how our leaders could ever let things get so bad.

 

ACLU believes that the judge’s oversight and exercise of discretion in the search and seizure process is paramount to the constitutionality of a search. We vigorously oppose any effort to disempower judges’ oversight role in searches, or to lower the standard for searches from the longstanding constitutional benchmark of “probable cause.”

 

In addition, the federal expansions of the jurisdiction of warrants for searches and wiretaps was overbroad and unwise. A person living in Laredo should not have to go to Amarillo or El Paso to contest a search of their premises. Current jurisdictional limits on state warrants exist for a very good reason and should not be tinkered with lightly.

 

Finally, as a corollary to the statements above decrying secret searches, we would ask that this Task Force resist recommending heightened secrecy for Texas search warrant affidavits. After complaints that a bail bondsman had tipped off a suspect prior to a search, the Legislature this spring passed a law closing search warrant records to the public until they are executed, but establishing them as open records after that. Law enforcement lobbyists pressed legislators to make search warrant records secret – even from the subject of the search – for months after the search. We believe such secrecy violates the constitutional requirement that searches not be “unreasonable” and that people have information about the “probable cause” basis for a search. Public access to search warrant affidavits is also fundamental to our system of open courts. Judicial orders based on probable cause can be reviewed by the public to ensure the police and the courts do not overstep the bounds of liberty in pursuit of convictions.

 

 

Protect the Texas Public Information Act

 

Recently Attorney General John Cornyn made headlines by suggesting that the Legislature should consider whether a security exemption is needed for the Texas Public Information Act. However, the ACLU of Texas believes such an exemption would be wholly redundant and unnecessary.

 

Texas law already exempts material from open records requirement if it relates to a criminal investigation or if it concerns crime prevention strategies. Virtually any “security” information imaginable that might truly create a threat if released would fall under those categories.

 

For example, records related to the post-9-11 anti-terrorism investigation would universally be closed under Texas law. Information about security at government installations could be withheld because it concerns crime prevention, and releasing the information would be counterproductive to preventing crimes against those facilities. All recent AG opinions – including those of both Attorneys General Morales and Cornyn – support exempting those types of records from public disclosure.

 

Attorney General Cornyn’s suggestion was based on the fact that the federal Freedom of Information Act contains a specific national security exemption. This exemption was created to protect highly sensitive intelligence information, and it has been much abused.

 

Texas has consistently maintained a strong and principled position that citizens have a fundamental right to information about government necessary to supervise the officials they elect. The Texas Public Information Act, despite biennial legislative attacks, remains one of the strongest open government laws in the nation and a source of tremendous Texan pride.

 

Our statute presumes that information is open unless specifically excepted, and the Legislature has historically drawn exceptions narrowly. We believe that law enforcement information is adequately protected already, but you will no doubt hear various other interest groups demanding secrecy in the name of safety.  This body should be mindful that a new closed record policy might harm public oversight—and with it public trust in our system of government—far more than it might help increase safety.

 

 

Enforcement of the Vienna Convention

 

Foreign nationals detained in the United States are at once at a distinct disadvantage due to language impediments, unfamiliarity with the legal system, and a lack of knowledge about their basic rights.  To alleviate these disadvantages, and with a view towards protecting American nationals abroad, the United States has entered into bilateral agreements and international treaties. 

 

In particular, article 36 of the Vienna Convention on Consular Relations, 21 U.S.T. at 100-101, 595 U.N.T.S. at 292, lays out the obligations a State must undertake when it detains a foreign national. Article 36(1)(b) obligates detaining officials to inform a detained national of his or her right to consular notification. Upon his or her consent or request for consular notification or in some circumstances regardless of consent, detaining officials must so notify those consular officials of the detention “without delay.”  However, the obligations of detaining officials do not end there.

 

Article 36 of the Vienna Convention on Consular Relations creates individual rights for detained foreign nationals as well as rights of signatory States to provide consular assistance to their detained nationals.  Article 36(1)(c) specifically grants to consular officers the right “to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation” if the foreign national so consents.

 

As a result, the interrogation of detained foreign nationals after notification of the foreign diplomatic office but before there has been a chance for meaningful communication between the detained national and consular officials, irrespective of any waiver of Miranda rights, runs afoul of the signatory State’s right to provide consular assistance and legal representation to the detained national and hence may subject the United States to international liability. Such questioning not only violates the rights of the signatory State under Article 36(1)(c), but also violates the individual rights granted to detained foreign nationals under Article 36(1)(b) specifically intended to alleviate the disadvantages inherent in their situation.

 

U.S law enforcement agents who detain a foreign national are therefore obligated by the Vienna Convention on Consular Relations to treat a request for consular notification, or the consent thereto, as the equivalent of an invocation of his or her Miranda rights and should refrain from any interrogation until meaningful contact between the foreign national and the consulate has occurred.

 

ACLU asks the Task Force to issue an interim recommendation that Texas prosecutors and law enforcement agencies should fully comply with the strictures of the Vienna Convention and allow all detained immigrants – whether related to 9-11 or not – to have full access to consular advice.