The Patriot Act’s surveillance authorities, long a source of concern for civil libertarians, are due to expire at the end of this month.
Instead of holding a serious debate about whether those authorities—which constitutional scholars and activists have suggested are in conflict with privacy protections outlined in the Fourth Amendment to the founding document—should be extended, the Obama White House and Congressional leaders are rushing to extend them.
Even more troubling is the fact that President Obama wants to extend the Patriot Act authorities—which permit US agents to conduct “roving surveillance” of communications, to collect and examine business records, and to target individuals who are not tied to terrorist groups for surveillance—for far longer than do House Republicans.
A new Statement of Administration Policy, issued Tuesday by the White House, argues that it “would strongly prefer enactment of reauthorizing legislation that would extend these authorities until December 2013.”
That stands in stark contrast to the proposal by House Republicans, who voted Tuesday only to extend the surveillance authorities until the end of 2011.
The White House claims the longer extension is needed to provide “certainty and predictability” for intelligence agencies.
But the longer extension also reduces the level of scrutiny and accountability that comes with a shorter extension, something that Obama—as a former constitutional law professor—should know is needed when walking the fine line between national-security demands and the guarantees of privacy provided by the Constitution.
The fact is that the surveillance authorities should not be extended in their current form—for the shorter period of time proposed by House Republicans or the longer period proposed by the administration.
The American Civil Liberties Union explained why in a letter sent In anticipation of this week’s planned consideration of the issue by the House.
Here’s what the ACLU Washington Legislative Office director Laura Murphy and legal counsel Michelle Richardson wrote:
On behalf of the American Civil Liberties Union, a non-partisan organization with over half a million members, countless additional activists and supporters, and 53 affiliates nationwide, we urge you to vote ‘NO’ on H.R. 514, a bill that reauthorizes three expiring provisions of the USA Patriot Act and the Intelligence Reform and Terrorism Prevention Act (IRTPA) until December 8, 2011. This bill reauthorizes and extends these laws without making common sense amendments to protect Americans‟ privacy. Because of the importance of this vote to civil liberties principles, we will be scoring this vote.
The three expiring provisions of the Patriot Act and IRTPA give the government sweeping authority to spy on individuals inside the United States and, in some cases, without any suspicion of wrongdoing. All three should be allowed to expire if they are not amended to include privacy protections to protect personal information from government overreach.
Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person‟s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or the provision should be allowed to expire.
Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called ‘lone wolf’ provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts, is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. According to government testimony, this provision has never been used and should be allowed to expire outright.
The bill also fails to amend other portions of the Patriot Act in dire need of reform, most notably those relating to the issuance and use of national security letters (NSLs). NSLs permit the government to obtain the communication, financial and credit records of anyone deemed relevant to a terrorism investigation even if that person is not suspected of unlawful behavior. Numerous Department of Justice Inspector General reports have confirmed that tens of thousands of these letters are issued every year and they are used to collect information on people two and three times removed from a terrorism suspect. NSLs also come with a nondisclosure requirement that precludes a court from determining whether the gag is necessary to protect national security. The NSL provisions should be amended so that they collect information only on suspected terrorists and the gag should be modified to permit meaningful court review for those who wish to challenge nondisclosure orders.
Instead of reauthorizing these provisions, Congress should conduct robust, public oversight of all surveillance tools and craft reforms that will better protect private communications from overbroad government surveillance. Because of the negative privacy implications of extending all of these laws, we strongly urge you to vote “no” on H.R. 514. We will track this vote and add its result to our Congressional scorecard.
Opposition to the extension of the Patriot Act in its current form has developed in the House, where 122 Democrats and 26 Republicans opposed the move Tuesday. In both the House and the Senate, we're seeing the renewal of the left-right coalitions that challenged the initial version of the legislation in 2001, when progressive Democrats such as Wisconsin Senator Russ Feingold and libertarian Republicans such as Texas Congressman Ron Paul voted “no.” Paul voted "no" Tuesday and his son, Kentucky Senator Rand Paul, was sending critical signals.
Congressman Dennis Kucinich, D-Ohio, a longtime foe of the legislation, wrote to colleagues—especially Tea Party conservatives—before Tuesday's vote, noting that “the 112th Congress began with a historic reading of the U.S. Constitution. Will anyone subscribe to the First and Fourth Amendments tomorrow when the PATRIOT Act is up for a vote? I am hopeful that members of the Tea Party who came to Congress to defend the Constitution will join me in challenging the reauthorization.”
“It is clear that more than eight years after the passage of the PATRIOT Act, Congress has failed to do its job: act as a co-equal branch of government exercising checks and balances over Presidential power. Who will and protect the American people from infringements on their most basic constitutional rights if Congress continues to reauthorize the PATRIOT Act?” continued the Kucinich letter, which concluded: “As Members of Congress, we are obligated to protect the rights and civil liberties afforded to us by the Constitution and to exercise our oversight powers fully. Despite years of documentation evidencing abuse of these provisions by the Inspector General of the Department of Justice, they may extended without any meaningful debate or opportunity to implement common-sense reforms to ensure that the privacy and civil liberties of all Americans are fully protected. Our failure to do so makes Congress complicit in these violations of basic constitutional rights.”