RE: H.R. 3199 – the “”USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005″”
On behalf of the American Civil Liberties Union’s nearly 500,000 members, we write to express our opposition to H.R. 3199, the “”USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005,”” which extends the expiring provisions of the Patriot Act 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 rein in the most egregious provisions of the Patriot Act. Our federal lawmakers should heed this call for liberty.
The House of Representatives has heard bipartisan calls for Patriot reform. It has voted, twice, to reject extreme provisions of the Patriot Act. It should do so again.
Unfortunately, the bill the House Judiciary Committee approved is a flawed bill that makes all but two of its expiring provisions permanent. It puts an excessively long ten-year sunset on those two provisions. It only includes minimal changes that the Justice Department has already conceded and does not address the major concerns raised about these intrusive powers.
Even more disappointing, the House Rules Committee has rejected allowing a fair, up-or-down vote on series of amendments that would correct these flaws based on no apparent principle other than the fact that these amendments likely have majority support on the House floor.
Amendments on which no up-or-down vote will be allowed would:
1) require individual suspicion for records orders, offered by Reps. Harman and Berman;
2) exempt library and bookstore records from secret Patriot Act records powers, offered by Rep. Sanders (and already approved by the House last month);
3) expand the new sunset clause to include all expiring provisions, offered by Rep. Ruppersberger;
4) extend the so-called “”lone wolf”” surveillance power as part of the new sunset period, rather than make this power permanent, offered by Rep. Hastings;
5) allow citizens to challenge secrecy orders in records requests, offered by Rep. Nadler; and
6) reform roving wiretaps in FISA cases to contain the same privacy safeguards as roving wiretaps in criminal cases, offered by Rep. Harman.
These six amendments reflect some of the principal objections that civil libertarians have made to the Patriot Act over the course of the last four years.
Denying a fair vote on these amendments is an unprincipled denial of democracy, an abuse of power and a slap in the face of millions of Americans who want fair, open, and honest debate – a debate that was also denied when the Patriot Act was first passed – on proposals that would protect their constitutional rights.
The base 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 respected, and also falls short by failing to correct the automatic, permanent secrecy order. The “”right to challenge”” in the bill may be illusory in many cases because challenges may only be filed in the Foreign Intelligence Surveillance Court and would be heard secretly, with secret evidence. The changes proposed are minimal, and reflect concessions the Justice Department has already made in litigation challenging this section. Extending this section for an entire decade, without any real changes to protect privacy, is inconsistent with the bipartisan House vote (238-187), just last month, to bar funding for the use of this intrusive power to obtain certain library and bookstore records.
- 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 why 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. Again, failing to reform this section is inconsistent with the overwhelming bipartisan House vote (309-118) in 2003 to bar funding for such “”sneak and peek”” searches.
- 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 offices, and car dealerships) with a demand that requires no individual suspicion, is permanently secret, and contains no right to challenge. Corrections are sorely needed to respond to a federal court decision (Doe v. Ashcroft) that struck down a “”national security letter”” as a result of these flaws because the statute violates the First and Fourth Amendments.
- Sec. 802: Overbroad “”domestic terrorism”” definition. The bill does nothing to correct an overbroad definition of “”domestic terrorism”” that could cover 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 rightly put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine the extraordinary powers when cooler heads would prevail.
While the House Rules Committee is not allowing a fair, up-or-down vote on many of the most important amendments, we urge your support for the following amendments:
1. Kucinich #27 — would repeal secret orders that do not require any judicial approval (including national security letters and orders for educational records) and would repeal an overbroad definition of domestic terrorism.
2. Flake/Schiff #5 – requires personal approval of FBI Director or Deputy Director for certain very sensitive records (parallels similar safeguard in Senate bill sponsored by Senator Specter).
3. Issa #30 – requires some additional after-the-fact reporting to a judge on the use of FISA “”roving”” wiretaps.
7. Delahunt/Flake/Otter #57 – would narrow the current overbroad definition of “”domestic terrorism”” (which applies to some direct action protest activities) to a definition linked to serious crimes of terrorism for purposes of civil forfeiture of property.
8. Flake/Otter #58 – increases reporting and narrows slightly the standard for “”sneak and peek”” search warrants (secret searches of homes and offices in any criminal case with delayed notice).
9. Berman/Delahunt #22 – requires Congressional report on use of intrusive data-mining software by the federal government that puts personal data under mass surveillance.
Rep. Flake will offer an amendment (Flake/Delahunt/Otter/Nadler #54) that would give recipients of a national security letter a right to challenge the order, and a right to challenge the secrecy order. An attorney can be consulted to challenge the order. The court is required to deny the challenge to the secrecy order based on a government certification that harm to the national security would result. The certification must be treated as “”conclusive”” unless submitted in “”bad faith.”” Explicit penalties, including imprisonment of up to five years, are provided for violating the secrecy order, and the government may invoke the aid of a court to compel production of records (and, if records are not produced, punish noncompliance as contempt). While we appreciate this efforts to provide greater protection to the recipients of national security letters (including by providing an explicit right to challenge the letters and the secrecy order), the amendment does not cure the constitutional problems that led the district court in Doe v. Ashcroft to strike down the statute.
While the amendment takes some steps in the right direction, it also adds new shortcomings to this flawed power. As a result, we cannot support the amendment in its current form.
We urge you to oppose the following amendments:
4. Capito #1 — This is a complex re-write of two federal criminal statutes that has not seen sufficient consideration in committee. It would expand significantly the federal death penalty by authorizing death sentences for attacks on local mass transit systems, including in states that do not have the death penalty.
10. Lungren #29 – expands the already very long list of wiretapping predicates.
11. Schiff/Coble/Forbes #44 – This is a very complex revision of federal criminal maritime law, including four new death penalties that has not received sufficient committee consideration. A death penalty is even provided for violating the federal law that makes it a crime to stowaway in a vessel or aircraft, if death results.
13. Carter #15 — This massive expansion of federal death penalty law would more than double the number of federal terrorism crimes eligible for the death penalty, from the current 20 to more than 50. It would make death-eligible some conspiracy-type offense such as material support of the lawful activities of a designated terrorist organization that are wholly unsuited for it. It would not deter suicidal terrorists, but it would greatly complicate international cooperation in combating terrorism by making it more difficult for America’s allies to extradite or share evidence in important terrorism cases.
14. Hart #9 – This amendment, although described as a terrorism financing amendment, would actually increase penalties for all violations of Treasury Department sanctions rules. Under this amendment, a grandmother who takes a trip to Cuba (or a minister who sends food aid) in violation of the embargo can be fined $50,000 instead of the current maximum of $11,000. The amendment also expands the already broad money laundering laws in ways that make them more likely to be abused against small business owners in immigrant communities who use informal money-transfer systems.
16. Hyde #11 – This amendment is duplicative of current law, which already provides serious penalties for both drug trafficking and material support of terrorism. It expands the death penalty by making it applicable to material support, which is a conspiracy-type offense wholly unsuited to such a penalty.
We urge you to oppose H.R. 3199.
We thank you for your consideration of our views.
Gregory T. Nojeim
Washington Legislative Office
Timothy H. Edgar
National Security Policy Counsel
Senior Counsel for Legislative Strategy
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