Senate Intelligence Committee Considers Patriot Act Expansion Bill in Secret; ACLU Calls for Open and Public Dialogue

May 26, 2005 12:00 am

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WASHINGTON – The American Civil Liberties Union denounced today’s closed-door votes by the Senate Select Committee on Intelligence of legislation designed to reauthorize – and expand – the Patriot Act. Included in the committee’s deliberations are proposals to make the Patriot Act’s most controversial provisions permanent, and to expand it by allowing FBI agents issue their own search orders with no advance court approval.

“These are proposals that demand a full, vigorous and public debate and vote, not secret meetings,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “If adopted, these broad new powers would sidestep time-honored checks and balances. Lawmakers should reject this reckless disregard for the Fourth Amendment.”

The bill would grant so-called “administrative subpoena” authority to the FBI, letting the bureau write and approve its own search orders, without judicial approval in advance, for any tangible thing it deems relevant to an intelligence investigation. This power would let agents seize personal records from medical facilities, libraries, hotels, gun dealers, banks and any other businesses, without having to appear before a judge, and without any evidence that the people whose records are swept in are involved in any criminal activity. Such a move would grossly undermine the Fourth Amendment’s protections against unreasonable searches and seizures.

Proponents of that power claim that this would give the FBI the same power used by government agencies administering federal programs, like Medicare. But these agencies also do not have at their disposal, as does the FBI, other search tools like grand jury subpoenas or Foreign Intelligence Surveillance Act search orders. The ACLU noted that this has been a long sought for power by the FBI – one that Congress has continuously denied for good reasons.

The proposal would also give the FBI broad new powers to track people’s mail in intelligence inquiries. It would force postal workers to disclose the name, address and other information appearing on envelopes delivered to or from people designated by the FBI, without any meaningful protections.

In a recent New York Times article, Zoe Strickland, the chief privacy officer for the Postal Service, said that, “From a privacy perspective, you want to make sure that the right balance is struck between protecting people’s mail and aiding law enforcement, and this legislation could impact that balance negatively? I worry quite a bit about the balance being struck here, and we’re quite mystified as to how this got put in the legislation.”

In addition, the bill would permit secret FISA searches and surveillance for the sole purpose of criminal prosecution for certain crimes, such as terrorism and espionage, allowing searches to proceed without following the requirements of the Fourth Amendment to the Constitution. FISA searches were designed to be used a tool in intelligence gathering investigations, so they are held to lower evidentiary standards than criminal investigations.

The proposed legislation creates the very real possibility that FISA will now be used to conduct searches and seizures in criminal investigations without probable cause that a crime has been committed, the ACLU said. In other words, it will let law enforcement do an end run around the Constitution. Breaking down the wall on communication between intelligence and criminal investigators does not require breaking the Fourth Amendment.

The ACLU also noted that the proposed legislation would remove one of the few safeguards in place for intelligence investigations. Currently, business records of an American cannot be demanded “solely upon the basis of activities protected by the first amendment to the Constitution.” The proposed legislation would delete this restriction and allow records sought based on constitutionally protected activity as long as the investigation as a whole is not based solely on constitutionally protected activity.

Nationwide, there has been growing discontent with the Patriot Act. Seven state legislatures and nearly 400 communities have passed resolutions calling on Congress to bring the Patriot Act in line with the Constitution.

“Now is the time for meaningful reform – not expansion – of the Patriot Act,” Graves said. “The chorus of concerned voices spans the country and political ideologies. Congress should respect this widespread call to restore meaningful checks and balances and should reject this effort to grab more power at the expense of our fundamental freedoms.”

For more on the ACLU’s concerns with the proposed legislation, go to:

A sign-on letter objecting to the administrative subpoena power is available at:

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