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Justice for True Patriots

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September 18, 2009

Yesterday, Sen. Russell Feingold (D-Wis.) introduced the Justice Act, which would provide much-needed fixes to the three provisions of the Patriot Act that expire at the end of this year. This is good news, because on Tuesday the Department of Justice said in a letter to Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) (PDF) that it was open to reforming parts of the Patriot Act. We’re going to hold you to that, DOJ!

Earlier this year, the ACLU’s Washington Legislative Office released a report, called Reclaiming Patriotism (PDF), that details the parts of the Patriot Act that need fixing most. Since the 38-page report isn’t exactly light fare, we’ll sum up the must-know parts for the upcoming Patriot Act debate:

First, the three provisions that will expire at the end of the year:

  1. Section 206, a.k.a. the “roving wiretap” provision: Section 206 allows the FBI to get an order from the Foreign Intelligence Surveillance Court (FISC) to wiretap a target without having to provide the target’s name or even their phone number. The provision only requires that the target is described “with particularity,” and that the FBI tell FISC why it had to tap the phone after it was tapped. It basically lacks any kind of specificity that, you know, a real warrant would need.
  2. Section 6001, a.k.a. the “lone wolf” provision of the Intelligence Reform and Terrorism Prevention Act (IRTPA): Section 6001 authorizes the government to get secret surveillance orders against individuals who are not associated with any international terrorist group or foreign nation. As the report points out, an international terrorist acting independently of any organization or country is pretty pie-in-the-sky unlikely.
  3. Section 215, a.k.a. the “library provision”: The term “any tangible thing” should raise your hackles. Like the previous two provisions, Section 215 also lowers the bar on the standard of proof needed to get a court order to surveill. Before the Patriot Act was passed, probable cause showing that the target of surveillance was the agent of a foreign power was required. After Patriot, Section 215 allows the FBI to only claim that the items or information sought is relevant to an investigation. That means the person being surveilled doesn’t necessarily have to be the target of the investigation or even be suspected of involvement in terrorism.

The ACLU is also concerned about provisions of the Patriot Act that are not expiring, but which would be amended under Sen. Feingold’s bill. For example, the National Security Letter statute, which permits the FBI to secretly demand sensitive and private customer records from Internet service providers, banks, and credit companies, without any suspicion or prior judicial approval. To make matters even worse, the statute allows the FBI to put gag orders on NSL recipients, prohibiting them from discussing the record demand. The ACLU has filed three lawsuits on behalf of NSL recipients, and most recently, a federal appeals court upheld a lower court ruling that the NSL statute’s gag provisions violate the First Amendment.

The Justice Act would also fix the worst parts of the FISA Amendments Act (FAA). You remember the FAA, right? That was the law Congress passed last year that immunized telecoms from lawsuits for wiretapping innocent Americans, in collusion with the National Security Agency. In passing the FAA, Congress — with the help of then-Sen. Obama — basically signed away our Fourth Amendment rights by allowing the government to conduct dragnet surveillance of Americans’ international communications.

We hope Congress and the president will take this opportunity to not only right that wrong, but also fix the overbroad sections of the Patriot Act by passing the Justice Act and signing it into law, restoring Americans’ privacy rights.

You can watch the debate unfold next week: On Tuesday, the ACLU’s Mike German will testify about the Patriot Act before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. And the Senate Judiciary Committee will hold a hearing on the Patriot Act next Wednesday.

(Oh, and in case you were wondering, the “Justice Act” is indeed a crazy acronym, just like the “Patriot Act.” It stands for: “Judicious Use of Surveillance Tools in Counterterrorism Efforts.” Does Congress have a machine that makes up these things?)

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