May 28, 2015

Certain Patriot Act surveillance authorities are scheduled to sunset on June 1. The ACLU continues to believe that Congress should use the opportunity presented by the scheduled sunset of these provisions to enact far-reaching reforms to the surveillance laws.

The time for reform is now. Americans overwhelmingly favor reform — recent polls show that a large majority of Americans from across the political spectrum are troubled by the government’s surveillance activities and want the Patriot Act to be scaled back. The courts have also made clear that reform is needed, with the Second Circuit in ACLU v. Clapper finding the NSA’s dragnet call-records program to be “unprecedented,” “unwarranted,” and illegal. And there is strong support for reform in Congress. Recent votes have shown that a significant majority in the Senate and an overwhelming majority in the House are in favor of reform, and that far more senators favor sunset or reform over reauthorization. Indeed, many members of the House who voted against the principal reform bill — the USA Freedom Act — did so because they concluded it did not go far enough, and at least one senator has said the same thing.

In light of the Second Circuit’s decision, the votes of the last two weeks, and the principled statements delivered on the Senate floor last week by legislators including Senators Rand Paul (R-Ky.), Patrick Leahy (D-Vt.), Ron Wyden (D-Ore.), Mike Lee (R-Utah), Richard Blumenthal (D-Conn.), and Martin Heinrich (D-N.M.), we believe even more strongly that the scheduled sunset of the Patriot Act provisions presents a unique opportunity to achieve more far-reaching reform. The USA Freedom Act could be a vehicle for such reform if it were strengthened, and we have explained the ways that it could be strengthened in letters to the House and Senate.

At this point, however, Senate majority leadership is an obstacle to even limited reform. Mitch McConnell (R-Ky.), the Senate majority leader, opposes even the USA Freedom Act and has advocated that the expiring Patriot Act provisions simply be reauthorized. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, has proposed a bill that would reportedly expand the government’s surveillance powers and allow the government to impose a data-retention mandate on private corporations. Democratic leadership, too, has not been uniformly helpful. Dianne Feinstein (D-Calif.), the ranking member of the Senate Intelligence Committee, supported the motion to proceed on the USA Freedom Act but has introduced a competing bill that would impose a data-retention mandate and allow many forms of large-scale collection to continue.

These efforts to short-circuit reform efforts should not be allowed to succeed. If leadership continues to stand in the way of necessary reform, lawmakers should simply allow the Patriot Act provisions to sunset. Intelligence officials have been unable to show that Section 215 is actually necessary, and the available evidence — including reports from the Privacy and Civil Liberties Oversight Board, the President’s Review Group, and the Justice Department’s Inspector General — strongly suggests it is not. Nor have officials been able to show that the other expiring provisions are essential in terrorism investigations.

Allowing the provisions of the Patriot Act to sunset wouldn’t affect the government’s ability to conduct targeted investigations or combat terrorism. The government has numerous other tools, including administrative and grand jury subpoenas, which would enable it to gather necessary information.

Allowing the Patriot Act provisions to sunset would not in itself achieve the broad reform that is necessary, but it would at least be a step in the right direction. It would also create a political environment in which some legislators who are standing in the way of reform would feel more compelled to respond to the broad public consensus that government surveillance must be reined in.

This is a crucial moment for our country, and a crucial moment for Congress. We urge legislators in the Senate and House to enact the kinds of structural reforms that are necessary to end overbroad and unlawful surveillance, and to ensure that the intelligence agencies become accountable to the people once again.

The ACLU's letter to the Senate on the USA Freedom Act is at:
https://www.aclu.org/sites/default/files/field_document/letter_to_senate_on_usa_freedom_act_5_23_15.pdf


 

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