6-14-05, 11:22 am
Despite reports that President Bush has misled the public about the need for and the effectiveness of the USA PATRIOT Act, the Republican-controlled US Senate is considering renewal and expansion of powers authorized by this law.
A senate committee has already approved certain aspects of the legislation that raise concerns for civil libertarians about Constitutional protections of rights. New provisions proposed by the Bush administration and the Republican leadership of Congress would give special authority for the FBI to issue administrative subpoenas to gain access, without judicial oversight, to business records, including those held at libraries.
Lisa Graves, ACLU senior counsel for legislative strategy, commented, 'Americans have a reasonable expectation that their federal government will not gather records about their health, their wealth and the transactions of their daily life without probable cause of a crime and without a court order.'
According to the ACLU, the PATRIOT Act handed the White House 'an unwarranted amount of power, which weakens the checks and balances that maintain our system of limited government and preserve our constitutional liberties.'
A permanent provision of the law, Section 213, expands the government’s ability to execute criminal search warrants (which need not involve terrorism) and seize property without telling the target for weeks or months. These are so-called sneak and peak warrants.
Other permanent provisions reauthorize the CIA to spy on Americans, lower standards for probable cause to search property and records, and expand powers of prosecutors to detain non-citizen terrorist suspects arbitrarily without charges and provides for indefinite detention.
Section 303 permanently obligates banks and other financial institutions to furnish personal customer information to the government.
Some sections of the law are set to expire at the end of 2005 and are currently being reviewed by Congress. They are known as 'sunset' clauses.
One 'sunset' clause, Section 215, allows the FBI to seize different types of sensitive personal information and belongings – including medical, library and business records – using secret intelligence tools that do not require individual criminal activity. When warrants are asked for under this provisions, PATRIOT Act compels judges to comply, making judicial review a mere rubber stamp.
Another sunset provision, Section 505, lowers the standard for required by federal authorities to obtain 'national security letters,' or NSLs, now issued at the sole discretion of the Justice Department. The law imposes a blanket gag order on NSL recipients, which are not subject to judicial review. NSLs can be used to seize a wide variety of business and financial records, and in certain instances could be used to access the membership lists of organizations that provide even very limited Internet services.
Section 802 is a sunset section that allows prosecutors to extend the definition of 'domestic terrorism' to protesters who engage in civil disobedience.
Other sunset sections include expanded wiretap authority such as 'roving wiretaps,' extended length of time for wiretaps, limitations on judicial review over wiretap authority, expansion of powers with little evidence of wrongdoing or probable cause.
These and other provisions worry the Bill of Rights Defense Committee (BORDC), an organization formed in response to the passage of the PATRIOT Act that seeks to restore the rights protected by the Constitution.
BORDC argues that expanded powers and new proposed authority undermines constitutionally protected rights and lay the groundwork for abuse of government power.
Civil liberties groups are asking the public to contact their representatives about pending legislation that would repeal the most controversial sections of the PATRIOT Act:
The Freedom to Read Protection Act (H.R. 1157) would reinstate legal standards which were in place for libraries and bookstores before the passage of the USA PATRIOT Act. Another version of this bill was offered as an amendment in 2004. It received broad bi-partisan support and a majority of votes in the House, until Republican leaders in the House 'persuaded' some GOP members to change their votes after extending the vote for 20 minutes and then called the vote closed as soon as a 210-210 tie was obtained. The measure was dead.
The Reasonable Notice and Search Act of 2005 (S. 316) would modify the USA PATRIOT Act’s 'sneak and peek' provision, which permits delayed notification of search and seizures.
While the President claims that no reports of abuse of power under the PATRIOT Act have surfaced, groups like BORDC and the ACLU say that the government’s enhanced secrecy, its refusal to release public, unclassified documents that provide information on how the law has been used, as well as permanent gag orders imposed by the law make disclosure of abuse impossible.
Meanwhile, the Civil Liberties Oversight Board, the mechanism designed to track any abuses of the PATRIOT Act, remains unfilled and unfunded.
--Contact Joel Wendland with your thoughts at jwendland@politicalaffairs.net.
