December 7, 2005
Summary of Conference Report on Patriot Act Reauthorization
- The
conference report (“conference report”) makes virtually all of the expiring
provisions of the USA PATRIOT Act (Patriot Act) permanent without including
necessary changes to restore checks and balances.
- Personal records from
libraries, bookstores, doctor’s offices, business, and other entities that are
not connected to an international terrorist or spy could still be obtained using
either a secret order under the Foreign Intelligence Surveillance Act (FISA) or
a “national security letter” (NSL) that can be issued by an FBI official without
any court oversight.
- Both
secret FISA orders and NSLs would continue to contain a potentially permanent
gag provision that bars a recipient from telling anyone (other than the
recipient’s lawyer) that records have been obtained. The court must accept as “conclusive”
the government’s assertion that disclosure of an NSL would harm national
security.
- The
bill allows sneak-and-peek searches under a broad standard not limited to
terrorism cases. New 30 and 90 day
time limits could be waived or renewed indefinitely, allowing such searches to
continue to remain secret for weeks, months or even years.
- The
bill still allows secret eavesdropping and secret search orders that do not name
a target or a location, with only after-the-fact oversight by a court as to why
the government believed a unknown target was in that location.
- Reforms the Patriot Act's
definition of “domestic terrorism” to provide that assets may not be forfeited
except where the organization or individual is involved in a serious federal
crime – a welcome change.
- Omits
modest limits on a host of additional Patriot Act surveillance powers, all of
which are made permanent.
- Although the final
reauthorization bill includes the most extreme death penalty provisions sought
by some, it would create a number of new crimes, including new death penalties,
without adequate consideration by Congress.
- The
bill allows the Justice Department, not federal courts, to determine that a
state has a competent death penalty system, qualifying it for a relaxed set of
procedural rules for federal habeas proceedings.
- Provides a new, four year
sunset on only three provisions out of scores of new surveillance powers
obtained by the government in the Patriot Act.
