Senate Intelligence Committee Considers Patriot Act Expansion Bill in Secret; ACLU Calls for Open and Public Dialogue
May 26, 2005
FOR IMMEDIATE RELEASE
Contact: Media@dcaclu.org
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:
ACLU – Safe and Free
ACLU’s letter objecting to the administrative subpoena power
Patriot Act Provision Lets Government Grab Personal Records Secretly; ACLU Testifies Before House That Law Needs Checks and Balances
May 26, 2005
FOR IMMEDIATE RELEASE
Contact: Media@dcaclu.org
WASHINGTON – The “national security letter” provision of the Patriot Act goes too far in letting the government secretly gather confidential records and gagging those ordered to turn them over, the American Civil Liberties Union said in testimony before a key panel of lawmakers Thursday.
“This provision lets the government force businesses to turn over confidential records in ‘national security investigations,’ even if the investigation isn’t linked to criminal activity,” said Gregory T. Nojeim, Acting Director of the ACLU Washington Legislative Office, who appeared before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. “Those served with these secret order are gagged from telling anyone about it. Lawmakers need to make sure these letters aren’t used to gather information about lawful political or religious activities that are protected under the Constitution.”
A key court ruling against a portion of the Patriot Act involved this provision. The ACLU and an anonymous Internet Service Provider had filed a lawsuit challenging the FBI’s authority to issue national security letters. In September 2004, Judge Victor Marrero of the Southern District of New York issued a landmark decision striking down the NSL statute and the associated gag provision, stating that “Democracy abhors undue secrecy. . . . [A]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society.”
The Justice Department and the administration have argued that this national security letter power was on the books long before the Patriot Act. But that’s not the whole truth, the ACLU noted. While the statute struck down was enacted in 1986, the Patriot Act dramatically expanded it.
The original statute allowed the FBI to issue national security letters only where it had reason to believe that the subject of the letter was a “foreign agent,” like a spy or a terrorist. Section 505 of the Patriot Act removes the individualized suspicion requirement and authorizes the FBI to use national security letters to obtain information about anyone at all if the FBI says the records are relevant to an intelligence investigation.
Also on Thursday, in the Senate, the Senate Select Committee on Intelligence held a closed-door session to mark up legislation that would reauthorize, and expand, the Patriot Act. The ACLU denounced the secret session, saying that the debate and vote on a public law should be public.
“Nearly 400 communities – including seven states – have passed resolutions calling on Congress to amend the Patriot Act to restore basic checks and balances,” Nojeim said. “These resolutions don’t ask lawmakers to scrap the whole law-they call for reasonable fixes to the worse provisions, like section 505, that would bring the law in line with the Constitution.”
Heretik sends over contact information for the Select Committee on Intelligence Members from his posting on the act here:
Senator Pat Roberts (R-Kansas), chairman
Senator Jay Rockefeller (D-West Virginia), ranking minority member
Senator Orrin Hatch (R-Utah)
Senator Mike Dewine (R-Ohio)
Senator Kit Bond (R-Missouri)
Senator Trent Lott (R-Mississippi)
Senator Olympia Snowe (R-Maine)
Senator Chuck Hagel (R-Nebraska)
Senator Carl Levin (D-Michigan)
Senator Dianne Feinstein (D-California)
Senator Ron Wyden (D-Oregon)
Senator Evan Bayh (D-Indiana)
Senator Barbara Mikulski (D-Maryland)
Senator Jon Corzine (D-New Jersey)
Pierrot spun off of Jean-Antoine Watteau’s painting, “Pierrot” 1718
Leave a Reply