ACLU Says Critical Changes to Patriot Act Still Needed, Modest But Meaningful Reforms Would Better Protect Freedom and Privacy

February 9, 2006 12:00 am

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WASHINGTON — The American Civil Liberties Union today expressed disappointment at the announcement of a deal between the White House and key lawmakers to reauthorize the Patriot Act without the most needed changes to protect freedom and privacy. Just last week, the act was extended until March 10, 2006 to allow more time for debate and negotiations.

Reform the Patriot Act

“Serious problems remain in the Patriot Act that require serious reforms,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Unfortunately, the proposed changes to the reauthorization bill do not correct the secret record search powers and do not require that there be any individualized suspicion of wrongdoing by Americans before their financial, medical, library or other records can be searched. Common sense reforms could have required that records sought be connected to a suspected terrorist or terrorist organization. We will continue to press for these and other needed reforms to protect American freedoms.”

“Regardless of what happens with this agreement, Congress can, and must fix the Patriot Act to better protect the privacy and freedom of ordinary Americans,” Fredrickson added. “At the same time, until the Bush administration stops the illegal NSA program to spy on Americans and stops ignoring the rule of law, any reforms to the Patriot Act could be ignored under the extreme philosophy of power embraced by this president. No matter the result of the Patriot Act, we hope all senators involved in these negotiations will resist pressure from the administration. Congress must restore the rule of law and insist that innocent Americans’ rights be protected against the overreaching of the White House. We can, and must, be both safe and free.”

The proposed changes to the conference report unfortunately do not cure the most fundamental flaws in the Patriot Act. The reauthorization bill would make explicit the right to counsel and the right to challenge an order for any “tangible thing” sought in an intelligence investigation, but it does not correct the underlying standard for issuing orders under Section 215 of the Patriot Act to require individualized suspicion. The conference report that stalled last year did not provide an express right to challenge the gag that accompanies a Section 215 order and the new agreement would make that explicit, but only under terms that make that right virtually an illusion.

Under the new agreement, businesses that receive Section 215 orders will be automatically gagged from exercising their First Amendment rights for a year before they can challenge that restraint, and even then they cannot win if the government claims that disclosure would harm national security or diplomatic relations. The flawed conference report already included a similar provision for the National Security Letter powers expanded by the Patriot Act, despite the ruling in the ACLU’s federal court challenge in Connecticut to a parallel gag order.

Some have suggested that it is a protection to say that a court must consider the asserted need for secrecy “conclusive” if the Deputy Attorney General or other official certifies such a need, but in the Connecticut case, the Deputy Attorney General signed the brief arguing for the gag, but when the court examined the asserted basis the judge found the assertion wanting. Under the reauthorization bill, a court would be barred from looking beneath such an assertion under a standard the ACLU considers unconstitutional.

The agreement would also remove the conference report’s language requiring recipients of NSLs to inform the FBI of the name of any attorney they consult about the demand for financial or internet records. The ACLU noted that this provision should not have been in the conference report in the first place. Finally, the agreement says that it would clarify whether libraries can receive NSLs in a provision titled “Privacy Protections for Library Patrons,” but unfortunately the changes do not protect library patrons’ internet or email transactions from disclosure and do not require that there be any connection between the records sought and a suspected foreign terrorist or person in contact with such a target.

“The debate on the Patriot Act has come a long way over the past four years, but clearly more work remains to be done to fully protect American civil liberties,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy ” Werenew our call to Congress to pass the SAFE Act, which would help cure many ofthe problems that are left unfixed. We hope lawmakers will also follow the leadof Congresswoman Jane Harman who introduced a bill that takes steps in the rightdirection to put additional checks in place to reform the National Security Letterpowers. These powers are being used without court oversight and public informationabout their reach into Americans’ lives. We will continue to work with Congressand our allies on the right and left to reform these overreaching laws.”

For more on the ACLU’s concerns with the Patriot Act, go to:

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