Re: Vote NO on the Conference Report on the USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199

Dear Member of Congress:

On behalf of the American Civil Liberties Union's more than 550,000 members, we write to express our strong opposition to the adoption of the Conference Report on H.R. 3199 (“Report”), the “USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005.”  This legislation reauthorizes virtually all of the expiring provisions of the Patriot Act, fails to correct the most flawed provisions of that legislation, creates additional federal death penalties, and includes unrelated legislation that has other civil liberties problems. The agreement to provide a sunset date of four years for three provisions of law does not correct these serious substantive shortcomings.

For the following reasons, described in detail in our memorandum explaining the bill,[1] we strongly urge you to vote against the reauthorization bill, which would:

• Continue to subject to government scrutiny records of Americans who are not tied in any way to suspected terrorists.   The Report simply presumes such records are relevant, making it easier to obtain records where there is a connection without protecting records of innocent people that have no relationship to a foreign terrorist or spy.  The limited right to after-the-fact judicial review in the bill will not cure the fundamental failure to focus these intrusive powers on records connected to a target in the first place. 

• Create an illusory right to challenge the secrecy orders accompanying these records demands.  A recipient would technically be given a right to challenge the gag order but if the government asserted national security, diplomatic relations or an ongoing criminal investigation the court would be required to treat that assertion as conclusive, making the “right” an illusion.  And a recipient who tells any unauthorized person about the demand can go to federal prison for a year, even if they have no intent to obstruct an investigation.  These features make the gag rule worse than current law.

• Creates NSL subpoena powers.  Although the bill rejects the proposal to give the FBI the power to write its own subpoenas for any tangible thing it deems relevant to an intelligence investigation, under the conference report any business that does not comply with an NSL for any of a wide range of records could be hit with contempt fines by the courts, transforming NSLs into national security subpoenas.

• Adds additional provisions unrelated to the Patriot Act, such as some additional death penalties. 

Leaders from across the political spectrum have called on Congress to fix these serious problems, but the Conference Report unfortunately reflects capitulation to political pressure from the administration to block the most critical improvements. 

The Report does modify some of the powers expanded by the Patriot Act but not sufficiently to vindicate Fourth Amendment rights.  For example, it makes minor changes to the power of the federal government to conduct sneak and peek searches of American homes and businesses, but leaves in place the most problematic “catch-all” provision that threatens to swallow the rule that a person should receive notice when the government has searched their home or business.  In other provisions, the bill appears designed to facilitate a talking point that civil liberties will be protected, when in fact, they are sacrificed.  For example, the bill includes a virtually meaningless right to challenge the gag orders the accompany the secret records search powers expanded by the Patriot Act.  Other changes, such as expressly acknowledging that a person who receives a demand for records under the Patriot Act can consult with an attorney about it simply codify concessions the government has made under the pressure of litigation.

As noted above, the Report does reject the extreme and unwarranted position advanced by the Senate Permanent Select Committee on Intelligence to give the FBI the power to write its own subpoenas for anything from any business in America in intelligence investigations, without any prior court approval or individualized suspicion connecting the records to a suspected terrorist.  However, the Report strengthens the power of the FBI to do so for certain categories of records, including financial records and records about internet transactions.   

In doing so, the Report misses an important opportunity to correct the unwise expansions of the Patriot Act, especially in the wake of recent revelations that the FBI is issuing 30,000 National Security Letters annually.  We understand that the Justice Department is maintaining all of the personal data swept in through these coercive demands even if the information obtained in these dragnets includes the records of innocent Americans who have no connection to a suspected foreign terrorist and have done nothing wrong.  The bill does not even take the extremely modest step of requiring minimization procedures for information obtained with NSLs (as it does require for FISA records orders), instead mandating a study of the issue.

Congress held more than a dozen oversight hearings about the powers expanded by the Patriot Act, but it took an investigative reporter to reveal to the American people, and even to key Members of Congress, that the NSL power has been used tens of thousands of times. 

Rather than addressing these revelations, the Report makes the law worse by creating a federal criminal penalty for any unauthorized disclosure in violation of a gag that is still potentially unlimited in time, by adding a plainly unconstitutional standard for challenging any gag ordered by the FBI, and by converting these coercive letters into subpoenas.  The Report thus takes several steps backward for civil liberties and fails to require any individualized connection between records demanded and a suspected terrorist.

In the wake of this failure in the oversight process, the Report also neglects to include a short sunset for the NSL powers to give Congress the leverage it apparently needs to get complete answers about how these secret powers are being used and whether they are even an effective use of limited resources.  Instead, some in Congress appear content to receive tardy and generic reports from the administration about these powers, despite the public outcry. 

On top of this, the Conference Report provides businesses with an illusory right to challenge being gagged from telling their customers or the press, potentially forever, further entrenching the secrecy of these inherently abusive powers.  The customer or patient or home buyer whose records are turned over and become part of the FBI databases will likely never know that his or her privacy has been violated.

For example, there is no indication that the FBI informed any of the individuals whose rights were violated by FBI or other federal agents through the use of Patriot Act powers that information was secretly gathered about them without proper authority.  This was revealed in documents responding to a Freedom of Information Act request filed by the Electronic Privacy Information Center. The reality is that anyone who is the subject of unlawful surveillance or unwarranted inclusion in these databases cannot challenge violations of their constitutional or statutory rights because there is no way for them to know that it is taking place or has taken place in the past.  Innocent people will likely never learn that their sensitive financial, medical, Internet or library records have been gathered.  Even if a person were charged with a crime, he or she might never learn the basis for the search in the first place.  This use of secret evidence immunizes rumor and innuendo.  Deferring to the Attorney General to develop guidelines to “minimize” the retention of information for only one of these powers (FISA records orders) will not cure these fundamental failings. 

Much information about consumers’ health, wealth, and daily transactions is now captured electronically by doctors, banks, and corporations for which people work or with whom they do business.  Without needed reforms to properly focus precious anti-terrorism resources on suspected terrorists, Americans risk becoming suspects in their own country without any evidence or factual connection to a target of a FISA investigation, and the government has in essence an ever-growing database filled with personal information about innocent people. 

That is one of the reasons why a report on datamining technology and practices by the Department of Justice, mandated in the bill, will be a helpful first step toward addressing this substantial threat to the privacy of all Americans.  This step, however, is overshadowed by the failure to include meaningful limits on the records gathering powers.  

Other positive and negative aspects of the bill are addressed in the memorandum referenced at the beginning of this document, but we must also note our disappointment that the Conference Report chooses to include a number of extraneous provisions that have nothing to do with the Patriot Act.  For example, although the most extreme proposals for changes to the federal death penalty system were omitted, the bill still creates a number of new crimes – including new death penalties – without adequate consideration.  Such unrelated legislation has no place in this debate.

Unfortunately, the Conference Report fails to fix the most flawed provisions of the Patriot Act, which became law only 45 days after the September 11 attacks.  This law represented a significant expansion of law enforcement power at the expense of civil liberties.  In the past year and a half more and more evidence has accumulated about the misuse or abuse of the Patriot Act’s extraordinary powers.  We hope Congress will reject this bill and embrace the call for meaningful checks on these powers to preserve America’s legacy of liberty.    

Nearly 400 communities, including the legislatures of seven states, have called on Congress to bring the Patriot Act into line with the Constitution.  In this Conference Report, despite the tireless efforts of many Members and their staffs, Congress has squandered the opportunity to do that.  We hope you will have the courage to cast your vote against the Conference Report.  Vote for protecting liberty and privacy by rejecting the continued undermining of the Constitution’s system of checks and balances that the Patriot Act embodies. 

Thank you for considering our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Greg Nojeim
Associate Director, Washington Legislative Office

[1] The memorandum can be found at: http://72.3.233.244/safefree/general/22384leg20051207.html