The "USA PATRIOT Act" (PL 107-56) could pose big problems for nonprofits, especially those that advocate changes in US foreign policy or provide social services to individuals that become targets of government investigations.

Introduction

The central problem is a vague, overbroad definition of a new crime, "domestic terrorism". (The attacks of September 11th are crimes under pre-USA PATRIOT Act law, making this provision unnecessary.) In addition, greatly expanded search and surveillance powers can be invoked under a lowered threshold, requiring only that investigators assert that information sought is relevant to a foreign intelligence investigation.

During the last week of October Congress rushed the bill through in a closed process that took place while Congressional offices were shut down for anthrax testing. The House passed the bill 352-66 on October 24th and the Senate approved it the next day 98-1, after just three hours of debate. Sen. Russell Feingold (D-WI) was the only Senator to vote against it, saying it "does not strike the right balance between civil liberties and security". There was no conference, since lawmakers worked out their differences in behind closed-door sessions prior to the votes. The process was so rushed that a final copy of the bill was not available to the public at the time the votes were taken. President Bush signed the bill on Friday October 26th.

The provisions of the USA PATRIOT ACT, combined with recent government actions against foreign nonprofits and our history of using such laws to suppress dissent, raise a real possibility that some nonprofits, their employees and members could be subjected to extensive surveillance, criminal charges or have assets frozen.

12 Questions and Answers About the USA PATRIOT ACT

Although Attorney General John Ashcroft says the government will use discretion in applying the law, two incidents in Bosnia reported by the Wall Street Journal on October 16th raise questions and concerns for nonprofits. Could These Incidents Happen in the U.S.?

Could a nonprofit be declared a "terrorist organization" because of non-criminal activity?

How could my organization and our members or employees be charged with criminal activity under the USA PATRIOT Act?

My organization provides social services to low income households. Could we be charged with providing material support to terrorists?

Could a nonprofit's offices be subject to search and seizure without prior notice?

Could the government search and/or seize nonprofits' organizational records or assets for non-criminal activity?

Could our phones be tapped or our computer use and emails monitored?

My organization is an educational/training institution. Can we be required to turn over confidential student records to the government?

Under what circumstances can a nonprofit's financial transactions be monitored by the government?

Under what circumstances can the funds and assets of my organization be frozen or seized?

Do I have any recourse if the government abuses its powers under the USA PATRIOT Act?

Do I really have to worry about these issues?

Q1. Although Attorney General John Ashcroft says the government will use discretion in applying the law, two incidents in Bosnia reported by the Wall Street Journal on October 16th raise questions and concerns for nonprofits. Could These Incidents Happen in the U.S.?

A1: YES: Under the provisions of the USA PATRIOT ACT, the incidents described below could lawfully take place in the United States, against American charities.

In late September a NATO force in Bosnia under American command conducted a middle of the night raid on the office of a charity relief organization that is partly funded by a U.S. ally, the Saudi royal family. After smashing in the door, the raiders confiscated documents, a computer and some cash. Two men were arrested and detained for five days. After their release they were each given $500.

Nihad Plavic, one of the men arrested, said NATO investigators questioned him about his employer, the Saudi High Relief Commission, which is headed by the brother of Saudi King Fahd. After the raid Saudi diplomats protested, saying the two were helping war orphans. A NATO representative said they were "suspected of involvement in terrorist activities", but gave no details. The Wall Street Journal reported that "the U.S. has yet to produce any public proof that Saudi Arabia or Saudi citizens have directed or encouraged any militant activities."

On October 12th the Bush administration froze the assets of Saudi businessman Yasin Kadi, declaring a defunct charity he headed as a "terrorist front". Kadi was not contacted prior to being listed. The group, known as the Muwafaq Foundation, operated in Croatia until five years ago, offering classes in computers, the Koran and Arabic language, and delivering food to Bosnia. Kadi described the administration's actions as a "witch hunt", and the Saudi Interior Minister said "we would like to receive evidence of our culpability before being targeted."

The size and complexity of large relief efforts have made it possible for extremists to infiltrate charities, working at low levels in remote locations with legitimate relief workers. This makes separating the organization's actions from independent actions of employees extremely difficult. When an organization is infiltrated in this way, it can be branded as a terrorist group, even if it has no knowledge of or complicity in terrorist actions.

Q2. Could a nonprofit be declared a "terrorist organization" because of non-criminal activity?

A2: YES. Under Section 411 of the Act the Attorney General or Secretary of State can designate a group as a terrorist organization if they believe the group

• Commits or incites a terrorist activity under circumstances indicating an intent to cause death or serious bodily injury, or
• Prepares or plans a terrorist activity, or
• Gathers information on potential terrorist targets, or
• Solicits funds for any of the above.

The designation is then published in the Federal Register. Payment of dues by non-citizens becomes a deportable offense and authority to freeze financial accounts is invoked. No specific criteria are listed for what constitutes a "terrorist activity". There are no procedural safeguards to protect against a wrongful designation.

Q3. How could my organization and our members or employees be charged with criminal activity under the USA PATRIOT Act?

A3: "Domestic terrorism" is defined in Section 802 as criminal activities under state or federal law occurring within the United States that:

• Are dangerous to human life and
• Appear to be intended to intimidate civilians or
• Influence the policy of a government by intimidation or coercion or
• Affect government operations by means of mass destruction, assassination, or kidnapping.

Broadly interpreted this definition could be applied to acts of political protest by any group whose tactics involve minor violations of law, such as engaging in civil disobedience. The crime of "domestic terrorism" carries stiff penalties, and anyone providing material support to such a group or its members, including "harboring", also can be charged with a criminal offense. Material assistance includes expert advice, assistance or training.

In a recent article Professor Ira Chernus, a Professor of Religious Studies at the University of Colorado, suggests that if Dr. Martin Luther King were alive today and leading demonstrations against the bombing in Afghanistan the following scenario could happen: Dr. King leads a group that stages a sit in on a highway to block a truck carrying military hardware. He could be arrested for domestic terrorism, since the prosecutor would only need to allege that 1.) blocking the road is a violation of law, 2.) human life was endangered by having people in the way of the truck, and 3.) the intent is to intimidate or coerce government action regarding the bombing.

Examples of nonprofit activity that could become "domestic terrorism":

• An anti-abortion group plans to heckle women entering a clinic.
• An environmental group does research on the dangers of nuclear power plants.
• A peace organization collects funds for Palestinian refugees.
• Members of a labor union block access to a factory so that scabs cannot cross the picket line.

Q4. My organization provides social services to low income households. Could we be charged with providing material support to terrorists?

A4: YES. If the government has designated someone as a terrorist, an organization that provides any kind of assistance to that person could be charged. Under Section 805 material assistance includes providing "terrorists" with cash assistance, lodging, training, expert advice, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. There is no requirement of intent to commit a crime, only that the assistance support an act designated as "domestic terrorism". The charge carries a sentence of up to 10 years in prison. The same holds true for Section 803, which prohibits harboring someone who has committed or is about to commit a "terrorist" act.

Examples of services that could be impacted if clients are designated as terrorists:

• Legal advice to an immigrant seeking permanent resident status
• Job training
• Rental or energy assistance
• Homeless shelters

Q5. Could a nonprofit's offices be subject to search and seizure without prior notice?

A5: YES. There are two ways this can happen. First, under Section 213, the government could enter an office at any time without giving prior notice if the judge issuing the warrant finds reasonable cause to believe that waiting to notify the organization may have an adverse result. This allows entry when no one is there. Notice must be given after the fact in a reasonable period of time, unless good cause is shown. The search must relate to a criminal investigation, but the organization does not have to be the target.

This new power, known as the "sneak and peek" provision, greatly expands the government's power to search without Fourth Amendment protections. Previously searches without prior notice were limited to situations where evidence might be damaged or destroyed, someone might flee from prosecution or be injured, a witness intimidated or an investigation jeopardized. The new "sneak and peek" standard lowers that threshold.

The offices of a nonprofit could also be searched without any notice under Section 218 if a "significant purpose" of the search is to gather information relating to an intelligence investigation. This also applies to wiretaps. No probable cause that a crime has been committed is required, and judges do not have authority to deny applications for warrants. In this type of search no notice is given to the organization before or after, effectively creating a secret search.

The Fourth Amendment's protection against unreasonable searches and seizures has traditionally required the government to get a warrant and notify a property owner prior to conducting the search. This makes it possible for a person to challenge the validity of the warrant. "Sneak and peek" and secret searches violate the fundamental constitutional principle, upheld by the Supreme Court, that prior notice is a key element of Fourth Amendment rights.

Q6. Could the government search and/or seize nonprofits' organizational records or assets for non-criminal activity?

A6: YES. Nonprofits can be impacted by Section 215, which allows seizure of records, computers and other items for "intelligence" investigation purposes, without requiring probable cause that a crime is involved. This provision applies whether or not the group is the subject of the investigation. Although the investigation cannot be "conducted solely upon the basis of activities protected by the first amendment to the Constitution", free speech activities can be the primary factor, as long as some other reason is cited.

Judges do not have discretion to deny applications for orders to seize records and other items if they cite intelligence gathering purposes. These orders are issued without notice. The order cannot disclose that it is issued for an investigation of international terrorism or clandestine intelligence activities. In addition, people involved in turning over the records must keep their actions secret. The records searched or seized could include confidential information, such as personnel files, financial transactions, medical data and client files.

Congress is requiring the Attorney General to report all requests for the production of tangible things to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate on a semiannual basis. The Committees on the Judiciary of the House of Representatives and the Senate will also get reports every six months on the number of applications made for orders approving requests for the production of tangible things and the number that are either granted, modified, or denied.

Q7. Could our phones be tapped or our computer use and emails monitored?

A7: YES, if the government alleges its purpose is intelligence gathering, even if your organization is not suspected of criminal activity. Title II allows expanded secret surveillance of phones and cell phones, interception of electronic message information (except the content of e mail) or Internet use for "intelligence gathering purposes". These powers extend to all technology used by the target of the surveillance, regardless of location or ownership. In addition, if anyone connected with the organization is detained, federal investigators have been authorized to eavesdrop on their communications with their attorneys, under a Justice Department rule issued October 31st.

Most of the wiretapping changes apply to all criminal investigations, not just crimes of terrorism. Under Section 216 judges are required to grant secret (ex parte) orders authorizing electronic surveillance when the government certifies that the information sought is "relevant to an ongoing criminal investigation." The target is never notified of the wiretap or computer monitoring, and does not have to be suspected of a crime. All that is required is that the group is thought to possess relevant information . This includes Internet routing, dialing and signaling information to determine what websites a person has used. Although the content of email messages is not supposed to be covered, it is bundled with information about the identity of the sender, recipient and subject line and will have to be separated by the government.

Section 216 also authorizes judges to issue secret search orders for Internet information without naming the service provider (ISP) to be searched, allowing the government to fill in the blanks. The purpose is to allow for follow up searches, but because the Federal Bureau of Investigation (FBI) will be using its CARNIVORE program, searches of both targets and non-targets will be possible. The government is required to keep records on its use of CARNIVORE and report it to the court, but these reports are under seal. As a result, the public will have no way of knowing how extensively CARNIVORE is being used, or for what purposes.

Section 206 does away with the requirement that warrants name the place to be searched by allowing for roving wiretaps for "intelligence gathering" purposes. Any phone or computer used by someone deemed to have relevant information can be tapped, including their place of employment or homes they visit. The subject does not need to be suspected of a crime to be wiretapped under this section. Previously this authority was only available if the government could show the target's changes in phones had the effect of thwarting the wiretap. The ACLU has called this authority "scattershot intelligence wiretaps".

The surveillance portions of the bill will sunset on December 31, 2005, except for ongoing investigations on incidents occurring before that date and "sneak and peek" searches.

Q8. My organization is an educational/training institution. Can we be required to turn over confidential student records to the government?

A8: YES, if the government obtains a secret (ex parte) court order under Sections 507 or 508 of the new law. Judges are required to grant the applications for these orders if the government certifies "specific and articulable facts giving reason to believe that the education records are likely to contain information…"

Sections 507 and 508 override privacy protections that had been in the Family Educational Rights and Privacy Act and the National Education Statistics Act to allow access to everything from coursework and grades to personal financial information, ethnicity, national origin, and medical records. Educational institutions that produce information under orders are not liable to any third person, including the student, even if the records are turned over without notice or consent.

The American Association of Collegiate Registrars and Admissions Officers has reported that 200 colleges and universities have turned over information to the FBI since September 11th, all under exceptions to privacy provisions that were already in place. These exceptions applied to emergencies where disclosure is necessary to protect the health or safety of the student or others, directory information and any information issued pursuant to a court order for law enforcement purposes. The broad new authority under the USA PATRIOT ACT expands this to include any investigation, as long as it is "relevant" to an investigation of international or domestic terrorism. There is no requirement that the student be the object of a criminal investigation.

Q9. Under what circumstances can a nonprofit's financial transactions be monitored by the government?

A9: USA PATRIOT Act Title III allows financial institutions to monitor daily transactions and share the information with the government if it appears the transaction is "suspicious". Section 358 requires these reports to be shared with the Central Intelligence Agency. The net effect is to give the government access to an organization or individual's credit reports and transactions with notifying them. The government does not need to make a prior showing that the information is relevant to an intelligence investigation.

Q10. Under what circumstances can the funds and assets of my organization be frozen or seized?

A10 : Section 806 of the new law expands the government's authority to confiscate property and assets if it can show it is more likely than not that the property:

• is connected to an organization or person planning or carrying out an act of domestic or international terrorism, or
• has been acquired or maintained for the purpose of carrying out, planning or concealing an act of domestic or international terrorism, or
• was involved in or derived from any act of domestic or international terrorism.

The government can seize property before any criminal charges are filed. While owners are notified that assets or property are being seized, it is not automatically returned to the owner if they are found not guilty. Section 106 gives the President broad authority to confiscate property of organizations with foreign assets, including freezing accounts "during the pendency of an investigation".

Because the definition of "domestic terrorism" is so broad, application of asset forfeiture laws to groups engaged in political protest is possible. (see Question 3 above) For example, if Greenpeace sent its ship to block oil exploration in the Artic Refuge, they could be charged with domestic terrorism and have all funds and assets seized. If the National Rifle Association staged a rally in violation of a parade permit the same thing could happen to them. However, groups that have connections to foreign nonprofits or aid programs are most likely to have problems.

The Executive Order issued by President Bush on September 24th broadens his authority to freeze assets of "any person or institution associated with terrorist or terrorist organizations." Under this standard, if an organization is not involved in activity that can be called "domestic terrorism", but is associated with another organization that is suspected, its accounts can be frozen by executive order.

Q11. Do I have any recourse if the government abuses its powers under the USA PATRIOT Act?

A11: Government officials that intentionally conduct surveillance that is not authorized by the act can be disciplined, and the subject of the search can sue the government. However, these remedies will not be useful in most instances, since the law forbids phone and Internet providers and custodians of records from informing people they are the objects of surveillance by federal authorities.

Section 223 leaves it up to the courts and federal agencies to take action if they determine a federal officer or employee has willfully and intentionally violated the rules relating to surveillance. If such a finding is made, an administrative disciplinary proceeding is held.

If an organization learns it has been the subject of unauthorized wiretaps or searches, it can sue in federal district court and recover damages of at least $10,000, plus litigation costs. However, the government can delay the case indefinitely if it shows the court (in sealed documents not available to the injured party) that disclosure of facts in the case would adversely affect a related investigation.

Q12. Do I really have to worry about these issues?

A12: We hope not. But the history of political use of security laws in the United States indicates that nonprofit organizations that are active on public issues and sometimes vocally disagree with government policy would be wise to think about what the USA PATRIOT Act could mean to them.

Attempts to suppress dissent through security laws go back to 1798 and the Alien and Sedition Acts. President John Adams and the Federalist Congress passed laws that made it a crime to criticize the government. They claimed the laws were passed in response to hostile actions of French revolutionaries. However, the laws actually were meant to weaken the opposition Republican Party, headed by Thomas Jefferson, which openly supported the French revolution. In 1800 Thomas Cooper, a Pennsylvania lawyer and editor, published a pamphlet critical of the Federalists and was imprisoned for six months and fined $400. The Acts were repealed after Jefferson won the Presidency.

During World War I there were also criminal penalties for certain types of speech, and during the 1950's the well known abuses of the McCarthy Committee took place. In the 1960's cold war laws were used for blacklists and to spy on and disrupt the civil rights and peace movements. More recent attempts at suppression of First Amendment rights include:

Operation CHAOS
From the 1960s to the mid 1970s the Central Intelligence Agency and the National Security Agency used Operation CHAOS to spy on U.S. citizens. The CIA participated even though their charter forbids domestic spying. Congress responded by including a provision in the Foreign Intelligence Service Act that expressly banned the CIA from domestic spying. This protection was repealed by Section 203, 901 and 905 of the USA PATRIOT ACT.

COINTELPRO
During the 1970s this FBI program was used to spy on and actively disrupt the civil rights, student and peace movements.

Racketeering Laws
The RICO statutes were meant to fight organized crime but have been used against abortion opponents, the Clinton administration and Republica political committees.

Investigation of the Committee In Solidarity with the People of El Salvador
In the 1980s the FBI coducted a 27 month "intelligence investigation" of this nation wide group, which opposed U.S. aid to repressive regimes in Central America.

Since September 11th more than 1000 people have been arrested and detained, and most are still in custody. Attorney General John Ashcroft has refused to provide the public with information about who is being held, whether or not they have been charged or are supsected of any crime and whether or not they have access to legal counsel. According to an October 29 report in the Boston Globe, lawyers for some of the detainees have said they are not even told where their clients are being held. Most are apparently being held as material witnesses, others were non-citizens brought in for questionning and found to have violations of immigration law.

There are reports of physical and verbal abuse, and some detainees are not allowed family visits, mail or television. One National Guard member was taken into custody when she reported for duty at Fort Campbell, Kentucky, because she was accompanied by her husband, an immigrant from Yemen, who was arrested and is still being held. The soldier was forced to request an honorable discharge.

The American Civil Liberties Union (ACLU) and a coalition of human rights and privacy groups filed a Freedom of Information Act Request with the Justice Department on October 29th, asking for information on those detained, any charges brought against them, their lawyers names and any courts that have been asked to seal any proceedings. So far the only response of the Justice Department has been to stop releasing information about the total number of people being held.

If the USA PATRIOT ACT is used in a way that interferes with the right to associate in nonprofit organizations or to speak out on issues as a community, it will be added to list of abuses of democratic rights in the name of security. If the law is used in this manner, the nonprofit community should respond forcefully, and demand repeal of the Act.

Conclusion

The USA PATRIOT ACT raises fundamental constitutional problems, including

• due process and the right to receive notice, confront evidence, receive a fair hearing and contest unfounded government action
• freedom of speech and association, and the right to question or criticize government policy and actions. and
• the balance of power between branches of government and the proper role of the judiciary in protecting constitutional and privacy rights.

Only time will tell whether or not the administration's use of the USA PATRIOT ACT will target groups or individuals that speak out against its policies. The ACLU has issued a statement saying "This broad new authority threatens to usher in a new age of investigation of Americans based on their political activities." However, they will not take immediate legal action, but will wait to see how the law is implemented. Nonprofits must do the same, and be ready to demand repeal if the law abuses constitutional rights.