ACLU Letter to the Senate Committee on the Judiciary Regarding the Reauthorization of the USA PATRIOT Act

July 21, 2005

The Honorable Arlen Specter, Chairman
Senate Committee on the Judiciary
224 Senate Dirksen Office Building
Washington, DC 20510

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The Honorable Patrick Leahy, Ranking Member
Senate Committee on the Judiciary
224 Senate Dirksen Office Building
Washington, DC 20510

RE: S. 1389 - the ""USA PATRIOT Improvement and Reauthorization Act of 2005""

Dear Senators Specter and Leahy:

On behalf of the American Civil Liberties Union's nearly 500,000 members, we write to express our views concerning S. 1389, the ""USA PATRIOT Improvement and Reauthorization Act of 2005,"" which extends the expiring provisions of the Patriot Act with certain 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 several hearings on the Patriot Act, where Members heard bipartisan calls for reform. We welcomed the opportunity to testify about our serious concerns about some of the provisions, and value the willingness of Senators and their staff to meet with us to discuss how to address these concerns.

Earlier this month, Chairman Specter and Senator Feinstein introduced a bill that made some changes to the Patriot Act and reflected a greater willingness to find common ground on how to protect our security and our liberty than the House version of Patriot Act reauthorization. Unfortunately, it still fell far short of correcting the most intrusive powers in the Patriot Act, and the ACLU joined with allies on the right and the left to press for additional modifications.

We genuinely appreciate the efforts Senators have made to include significant improvements in the Senate Judiciary Committee bill. We are especially appreciative of the efforts of the Chairman, Ranking Member Leahy, Senator Durbin, and Senator Feingold to craft a bill that won the unanimous support of the Judiciary Committee in the mark-up today. We commend the hard work of those who have toiled to produce a bipartisan bill that takes a significant step forward in improving some of the most intrusive provisions of the Patriot Act.

The bill still falls short in some key areas affecting our civil liberties. As a result, we cannot endorse the bill but we do hope to work with the Judiciary Committee in the future in the same bipartisan tradition on these and other concerns affecting civil liberties and national security.

The modified version of the Specter-Feinstein bill, while improving current law, does not fully correct some of 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 provides a requirement of a statement of facts (as opposed to a mere certification), which is the Foreign Intelligence Surveillance Court can review to determine why the records sought are relevant to an intelligence or counter-terrorism probe, and further requires some connection with a suspected terrorist or spy or an innocent person in contact with such a suspect. The ""right to challenge"" in the bill would parallel the standards for a right to challenge a grand jury subpoena, rather than artificially limiting challenges only to issues of ""legality.""

Unfortunately, the right to challenge may prove illusory in practice because the bill requires that challenges be filed only with the Foreign Intelligence Surveillance Court and would be heard secretly, with secret evidence. A requirement to provide notice of the right to challenge has been deleted in the modified version. The bill fails to correct the automatic, permanent secrecy order, although it does make the order subject to a legal challenge. Even with the changes made by the bill, the personal records-such as medical records or library records-of innocent people can still be obtained, if they have some contact, including innocent contact, with a suspect.

  • Sec. 206: ""Roving"" wiretaps in national security cases without naming a suspect or telephone. The bill's changes addressing the overbroad provisions of the Patriot Act that allows the government to get ""John Doe"" roving wiretaps - wiretaps that fail to specify the target or the device - are welcome.

The bill requires that an unknown target be described with ""particularity"" (although this is already required by the Fourth Amendment). The bill requires an after-the-fact report to the court explaining why the agents believed the target was using the phones it is tapping The bill would continue to permit roving wiretaps that identify neither the target nor the device (if the target is described with ""particularity""). The bill's after-the-fact notice requirement does not actually require that the government check to make sure its ""roving"" wiretaps are intercepting only the target's conversations. Both of these reasonable requirements are part of the criminal ""roving wiretap"" statute. It is disappointing that they were not included in a statute that covers an even more secret and intrusive form of surveillance.

The modified version of the Specter-Feinstein bill, while improving current law, also does not fully correct some of the most intrusive provisions of the Patriot Act that permanent. For example (this list is not exhaustive):

  • Sec. 213: Sneak and peek searches of homes and offices. The bill sets an initial time limit on delaying notice when someone's home or business is searched, unlike the Patriot Act's provision for sneak and peek searches. The limits on delayed notice searches are an improvement over current law because they specify that, normally, the initial period of delay should be seven days (although renewal periods can be as long as 90 days).

Unfortunately, these time limits are weakened by an open-ended loophole that would allow the government to obtain longer delays ""if the facts of the case"" justify such a longer delay. The bill also 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), in only slightly modified form. Notice could be delayed if it would ""seriously jeopardize an investigation"" but not if it would ""unduly delay a trial.""

  • Sec. 505: Intrusive ""national security letters."" The bill includes some reforms to 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) through a National Security Letter (NSL) that requires no individual suspicion, requires no court approval, is permanently secret, permits no right to consult counsel and contains no right to challenge. The bill would provide a right to consult with counsel and challenge the NSL demand in court.

Unfortunately, unlike the reforms to section 215, the bill does not contain a standard requiring a statement of facts showing relevance or any connection with a suspected terrorist, spy or person in contact with a suspect. The bill would allow the government to invoke the aid of a court in enforcing NSLs and would also preserve the permanent, automatic secrecy order. The secrecy order is overbroad and essentially standardless because the court is required to accept as ""conclusive"" the government's assertion that secrecy is required because national security would be endangered unless that claim were made in ""bad faith."" More substantial corrections to Section 505 are needed to respond to a federal court decision (Doe v. Ashcroft) that struck down an NSL statute changed by Section 505 as a result of these flaws and which found that 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 covers some direct action protest tactics, such as blocking traffic or other civil disobedience, including misdemeanors, regarded as ""dangerous to human life"" and motivated by a desire to influence government policy.

Sunsets. Congress rightly put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine these extraordinary powers when cooler heads could prevail. The bill extends sunsets on sections 215 (FISA records orders) and 206 (FISA roving wiretaps) of the Patriot Act, and section 6001 (the so-called ""lone wolf"" provision) of the 2004 Intelligence Reform Act for another four years, and makes every other provision permanent and does not include any new sunsets for other far-reaching powers created or expanded by the Patriot Act, such as Section 505. New sunset dates help ensure greater accountability in the coming years about how these intrusive powers are being used. While four years is a reasonable sunset period, Congress should not so artificially constrain its review to just two provisions of the Patriot Act and the ""lone wolf"" power.

We thank you for your consideration of our views.

Sincerely,

Gregory T. Nojeim
Associate Director
Washington Legislative Office

Timothy H. Edgar
National Security Policy Counsel

cc: Members of the Senate Judiciary Committee

 

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