ACLU Letter to the House Judiciary Committee Opposing H.R. 3199, the ""USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005""

The Honorable F. James Sensenbrenner, Jr., Chairman
House Judiciary Committee
Rayburn House Office Building, Room 2138
Washington, DC 20515

The Honorable John Conyers, Jr., Ranking Member
House Judiciary Committee
Rayburn House Office Building, Room 2142
Washington, DC 20515

RE: H.R. 3199 - the ""USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005""

Dear Reps. Sensenbrenner and Conyers:

On behalf of the American Civil Liberties Union's nearly 400,000 members, we write to express our opposition to H.R. 3199, the ""USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005,"" which makes all of the expiring provisions of the Patriot Act permanent with only minimal changes.

Nearly four years after the passage of the Patriot Act, almost 400 communities -- including seven states and representing roughly 62 million Americans-- have passed resolutions calling on Congress to reign in the most egregious provisions of the Patriot Act. Our federal lawmakers should heed this call for liberty.

This committee held extensive hearings on the Patriot Act, where the committee heard bipartisan calls for the Patriot Act's temporary and permanent provisions to be reformed. Unfortunately, the House Judiciary Committee's proposal is a flawed bill that makes the expiring provisions permanent and only includes minimal changes that the Justice Department has already conceded and that do not address the major concerns with these intrusive powers.

The bill falls far short of correcting the most intrusive provisions of the Patriot Act that are subject to the sunset clause. For example (this list is not exhaustive):

• Sec. 215: Secret searches of personal records, including library records. The bill does not provide a standard of individual suspicion so that the court that examines these extraordinary requests can ensure personal privacy is respect, and also falls short by failing to correct the automatic, permanent secrecy order. The ""right to challenge"" may be illusory in many cases because challenges may only be filed in the Foreign Intelligence Surveillance Court and are heard secretly, with secret evidence. The changes proposed are minimal, and reflect concessions the Justice Department has already made in litigation challenging this section.
• Sec. 206: ""Roving"" wiretaps in national security cases without naming a suspect or telephone. The bill does nothing to correct the overbroad provision of the Patriot Act that allows the government to get ""John Doe"" roving wiretaps - wiretaps that fail to specify the target or the device. The bill also does not include any requirement that the government check to make sure its ""roving"" wiretaps are intercepting only the target's conversations. Both of these requirements are part of the criminal ""roving wiretap"" statute. There is no reason they should not be included in the statute that covers an even more secret and intrusive form of surveillance.

The bill also falls far short in failing to address the most controversial permanent sections of the Patriot Act. For example (this list is also not exhaustive):

• Sec. 213: Secret ""delayed notice"" searches of homes and offices. The bill leaves in place an overbroad, ""catch-all"" standard for allowing the government to delay notice of an ordinary criminal search warrant (available in all cases). The bill also imposes no time limit on delays, allowing such delays to continue for weeks, months or even indefinitely.
• Sec. 505: Intrusive ""national security letters."" The bill does nothing to correct the FBI's extraordinary power to obtain credit reports, communications service provider records, and so-called ""financial records"" (which actually covers businesses as varied as casinos, real estate officers, and car dealerships) with a demand that requires no individual suspicion, is permanently secret, and contains no right to challenge.
• Sec. 802: Overbroad ""domestic terrorism"" definition. The bill does nothing to correct an overbroad definition of ""domestic terrorism"" that covers some direct action protest tactics, such as blocking traffic, trespassing on private property, or other civil disobedience that is regarded as ""dangerous to human life"" and is motivated by a desire to influence government policy.

Congress rightfully put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine the extraordinary powers when cooler heads would prevail. Although the House Judiciary Committee's base bill does not expand the Patriot Act in the unwise and unwarranted way the Senate Intelligence Committee proposed, it can and must be modified to ensure that Patriot powers are focused on terrorists, and not ordinary Americans whose civil liberties must be protected to preserve our American values.

We thank you for your consideration of our views.

Sincerely,

Gregory T. Nojeim
Acting Director

Timothy H. Edgar 
National Security Policy Counsel

Lisa Graves Senior
Legislative Strategist

cc: Members of the House Judiciary Committee