Senate Intelligence Committee Examines Controversial Patriot Act Expansion Bill; Closed Door Vote to Be Held This Week

May 24, 2005 12:00 am

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WASHINGTON – The Senate Select Committee on Intelligence met today to consider legislation that would reauthorize – and expand – the Patriot Act. The American Civil Liberties Union denounced attempts to expand, rather than critically review and reform, the controversial provisions set to expire at the end of the year. A proposal to make the law’s most controversial provisions permanent, and to expand it by allowing FBI agents issue their own search orders with no advance court approval, will likely be voted on in secret Thursday.

“Now is the time to bring the Patriot Act in line with the Constitution – not expand it,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “Concerned citizens from across the political spectrum have spoken out against the Patriot Act’s secrecy: many provisions are implemented secretly, and the government has kept secret key information on how these extraordinary powers are being used. Now, some lawmakers are trying to keep debate and votes on legislation to reauthorize and expand the Patriot Act secret as well.”

The bill would grant so-called “administrative subpoena” authority to the FBI, letting the bureau write and approve its own search orders for any tangible thing it deems relevant to an intelligence investigation without approval. This power would let agents seize personal records from medical facilities, libraries, hotels, gun dealers, banks and any other business, 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.

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.

The bill would permit secret Foreign Intelligence Surveillance Act 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.

Without limits on how the powers can be used, 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.

The ACLU also noted that the proposed legislation would remove the one safeguard in place against using FISA warrants recklessly. Currently, FISA warrants cannot be issued against Americans when the investigation is “conducted solely upon the basis of activities protected by the first amendment to the Constitution.” The proposed legislation would amend that limited protection so that FISA records searches can be conducted solely based on First Amendment activities so long as the investigation as a whole is not based solely on constitutionally protected activity.

“Protecting America also means protecting our Constitution,” Graves said. “If adopted, these broad new powers would sidestep time-honored checks and balances. Lawmakers should hold an open process, and reject this reckless disregard for the Fourth Amendment, which protects the liberty and privacy of all Americans.”

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

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