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Better now than later: Tightening the USA-PATRIOT Act

By Steve Lilienthal
web posted November 10, 2003

Recently, Chicago's city council passed a resolution expressing concern about the sweep of the USA-PATRIOT Act and the need for revisions.

Over 175 communities and three states have passed similar resolutions, signifying a broad concern on the part of the public that the wording of the PATRIOT Act needs to be tightened to ensure that federal law enforcement employs its powers in the way that Congress intended.

One measure pending in Congress that revises the PATRIOT Act in its current form to ensure a higher standard of judicial oversight and accountability to Congress is the Protecting the Rights of Individuals Act that was introduced by Senator Lisa Murkowski (R-AK) shortly before Congress adjourned for the summer break.

Another bill that was discussed at a well-attended press conference a few weeks ago is the Security and Freedom Ensured Act of 2003 (aka the SAFE Act) whose sponsors include Senators Larry Craig (R-ID), Mike Crapo (R-ID), John Sununu (R-NH), Dick Durbin (D-IL), Ron Wyden (D-OR), Jeff Bingaman (D-NM), and Russ Feingold (D-WI).

The SAFE Act contains fewer revisions than the PRI Act but embodies the same principles.

Americans who care about protecting our constitutional liberties and who want to ensure that our Federal law enforcement and intelligence agencies have the tools to fight the War on Terrorism should welcome the introduction of the SAFE Act.

Missing from some important provisions of the USA-PATRIOT Act and provided by the SAFE Act are stronger standards for judicial review and congressional oversight. Understandably, the pressure that Congress was under to pass legislation to fight the War on Terrorism in the wake of 9/11 led to some hastily considered, barely understood measures that provided greater power to the Federal Government that could easily be abused.

One notable improvement over the USA-PATRIOT Act is the added oversight in the use of the delayed notification searches, the so-called "sneak and peek" measure. The USA-PATRIOT Act contains a catch-all provision that apparently would permit the use of this extraordinary power in virtually any criminal investigation.

The SAFE Act permits its use only in those circumstances in which law enforcement believes and a federal judge concurs that without the delayed notification the life or physical safety of an individual will be endangered, someone will flee prosecution, or it could result in the destruction or tampering of evidence.

Under the PATRIOT Act, the deadline for notifying the subject of the search is essentially indefinite, simply defined as a "reasonable period." The SAFE Act has a stricter deadline of seven days with the ability to seek indefinite extensions on a weekly basis provided that a federal judge concurs.

Furthermore, the Attorney General will be required to report to Congress on a semi-annual basis about the requests that have been made for delayed notification searches and extensions, whether they have been permitted or denied, an important step to ensure that the power is being exercised responsibly.

The fact that the SAFE Act sunsets the sneak and peek power in 2005 is also very welcome, correcting a serious oversight.

The SAFE Act enacts a higher standard of judicial review when it comes to allowing the government to obtain business, medical, or library records too. A great deal of public concern has been aroused over the wording of Section 215 of the PATRIOT Act, and the SAFE Act should help to allay it.

As it stands now, Section 215's wording would permit the seizure of whole databases to be seized by obtaining secret court orders. In other words, federal law agencies could seize the contributor lists of right-to-life organizations, gun shop lists, and simply keep the information on hand without having any cause for individualized suspicion.

The SAFE Act institutes a higher standard of requiring law enforcement to state specific and articuable facts showing there is a "reason to believe" based on individualized suspicion for Section 215 searches to occur. Law enforcement would have to prove to a federal judge that the person whose records they are seeking is a foreign power or an agent of a foreign power. Also, the SAFE Act would require reports to Congress about the use of this power.

If passed, the SAFE Act's reforms should go a long way to convincing the American public that the powers of the PATRIOT Act are less likely to be abused in the long-run. That can only work to the advantage of federal law enforcement in their ability to obtain cooperation from the public.

However, the definition of "domestic terrorism" in the USA-PATRIOT Act is another important measure that still needs to be rewritten to ensure political activists exercising their legitimate First Amendment rights cannot be targeted by overzealous bureaucrats or a future administration. That was something that responsible Members of Congress never intended when they passed the PATRIOT Act in 2001. Instead of allowing any violation of federal or state law, including misdemeanors, to be considered terrorist acts, the existing Federal statutes that define terrorism should be sufficient. Senator Murkowski's PRI Act would mandate a correction, something that the SAFE Act does not address.

Conservatives who are defenders of privacy and constitutional liberties should be pleased with the SAFE Act. Senators Larry Craig and Mike Crapo are conservative stalwarts who understand the need to protect the freedom and liberty that represents the true strength of America. Senator Sununu, a freshman, is clearly concerned with seeking a reasonable balance between liberty and security. They deserve our thanks for taking this step. Rewording the PATRIOT Act and the SAFE Act along the lines suggested by the PRI Act and the SAFE Act will be a significant step toward protecting our constitutional liberties from potential future abuses. At the same time, both measures ensure that Federal law enforcement and intelligence agencies retain their PATRIOT powers to defend our country from terrorists. Neither the PRI Act nor the SAFE Act repeals anything in the USA-PATRIOT Act. They only sharpen the wording to ensure its powers are harnessed against terrorists, and institute needed checks and balances.

The memory of the Clinton Administration's abuses against conservatives lingers. Passage of the provisions comprising the PRI Act or the SAFE Act would limit the possibility that the poorly worded sections of the PATRIOT Act can be bent by bureaucrats or a future administration's political appointees to prosecute so-called political "enemies." Since we do not know who will be in power in 2005 when sunset provisions apply to many sections of the PATRIOT Act revising it now makes good sense.

The best thanks that Senators Murkowski, Craig and Crapo can receive is to have the grassroots echoing their message in their communities.

Providing greater standards of oversight and accountability to the USA-PATRIOT Act now represents an act of prevention that can stop serious injustices from occurring later. With an election approaching you can bet your Congressman and Senators are listening closely to what the folks back home are saying. That's why there's no better time to press for sensible and prudent revisions to the USA-PATRIOT Act.

Steve Lilienthal is Director of the Center for Privacy and Technology Policy at the Free Congress Foundation.

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