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Reauthorizing the USA PATRIOT Act: The battle moves to conference

By Stephen M. Lilienthal
web posted September 5, 2005

The House and Senate in July passed legislation to reauthorize the USA PATRIOT Act. The House arguably missed the opportunity to include reforms that would increase national security and would protect the civil liberties of American citizens when it passed its version, the USA PATRIOT and Terrorism Prevention Reauthorization Act. The Senate, where there is more support for reforms, passed the USA PATRIOT Improvement and Reauthorization Act of 2005. What comes next? It is too early for Conservative and Libertarian defenders of civil liberties to raise the white flag and surrender. The battle moves to a House/Senate Conference on the legislation to reauthorize the USA Patriot Act.

The House legislation would make permanent all but two of sixteen foreign intelligence surveillance provisions set to expire or to "sunset" on December 31, 2005 under the USA PATRIOT Act. The two exceptions are Section 206 pertaining to roving wiretaps and Section 215 pertaining to business and library records, which would expire on December 31, 2015.

The House legislation would increase Congressional and judicial oversight and Department of Justice Inspector General review.

Undoubtedly, in this age of terrorism, the stakes are high. If privacy advocates do not insist upon proper oversight of federal laws we could be headed down a slippery slope. That is exactly why privacy advocates must insist upon anti-terrorism legislation that would protect privacy rights and civil liberties.

The day after the House vote, Representative Roscoe Bartlett (R-MD), one of nine Republicans who voted for the sunsets, said:

"Contrary to our history, our Constitution, and cherished legal principles, this bill gives the government vague sweeping powers, instead of specific limitations. It does not contain effective checks and balances on these powers. None of these extraordinary expansions of power for the government should be made permanent.

"The presumption of our innocence until the government first proves we are guilty is a bedrock principle of our nation. This inaccurately named bill reverses this fundamental concept. I refuse to eradicate the constitutional protections that safeguard all of our rights as individuals. These are rights that have made us a free society for more than 200 years."

Representative Ron Paul (R-TX), another proponent, made a similar point:

"The Patriot Act, like every political issue, boils down to a simple choice: Should we expand government power, or reduce it? This is the fundamental political question of our day, but it's quickly forgotten by politicians who once promised to stand for smaller government. Most governments, including our own, tend to do what they can get away with rather than what the laws allow them to do. All governments seek to increase their power over the people they govern, whether we want to recognize it or not. The Patriot Act is a vivid example of this. Constitutions and laws don't keep their government power in check; only a vigilant populace can do that."

Representative Paul spoke of the London bombings and warned that opponents of the USA PATRIOT Act want to eliminate the sunsets and want to reject other prudent amendments that would protect us from terrorists and from further acts of terrorism. (The House approved an amendment that Representative Paul offered to the USA PATRIOT Act. It would give "American citizens [the right] to participate in political activity without fear of government surveillance.")

What will happen in conference?

The Senate-approved legislation would limit the use of Section 206 roving wiretaps and expand fewer sunset provisions than would the House bill. One respected conservative, Senator Tom Coburn (R-OK), supported the sunsets. In a Washington Times story, published the day after the House vote, Senator Coburn said: "There's still a lot of uneasiness about this legislation in [M]iddle America, and I think we need to pay attention to that. . . . I believe it's very important for us to send a message of comfort to the American people that not just the two provisions in this bill will be sunsetted."

Conservatives and Libertarians must say, "Ten years is too long" to wait for the sunsets to expire. If enacted into law the provisions to authorize roving wiretaps and business and library record searches would expire on December 31, 2015, not sooner, as proponents would prefer. We could not be assured that Congressional oversight, as required by the USA PATRIOT Act, would be implemented correctly. Nor could we trust the Department of Justice to issue appropriate regulations. It would not matter whether the Attorney General were appointed by President George W. Bush or by Presidential-hopefuls, such as Senators Hillary Rodham Clinton (NY) or John Forbes Kerry (MA).

Senator John Sununu (R-NH) wrote in a November 24, 2004 commentary, published in the New Hampshire Union Leader, that a "sunset provision does not weaken legislation; it simply forces Congress to rethink the merits of legislation and examine how legislation has been used. We are much more likely to make improvements to legislation if we have to reauthorize it at specific intervals in the future."

Exactly. It would be risky to hand government bureaucrats a blank check as the House would do by deleting most of the sunset limitations. The Conferees should reauthorize a USA Patriot Act that would extend the expiration dates of all sixteen sunset provisions, requiring that the sunsets expire sooner than the ten-year deadline proposed in the House bill and requiring that the Section 213 "sneak and peek" provisions be sunsetted. (The House report explains that Section 213 in the 2001 Act "[b]roadens authority of law enforcement to delay notification of search warrants in criminal investigation if prior notification of search warrants would have an adverse result and if notification is given a reasonable period after the search." The provision is based on the codification of a Second Circuit decision.)

Permanent provisions, in lieu of sunsets, could be harmful were the House and Senate Conferees to require no oversight by Congressional committees. The USA PATRIOT Act is needed to fight terrorism and possible terrorists attacks, but, as written, the Act could risk jeopardizing our civil liberties.

The FBI posted on its website on October 4, 2004, "Responding to Your Concerns: Checks and Balances on the FBI," which applies to this commentary. An excerpt follows:

"Question: But what safeguards are in place to prevent us from stepping on civil liberties and privacy rights in the course of our investigations and intelligence operations?

"Answer: Regular, vigorous Congressional oversight of all aspects of FBI operations by eight primary committees of the U.S. Congress." [House and Senate Judiciary, Intelligence and Appropriations Committees plus House Government Reform Committee and Senate Governmental Affairs Committee.]

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


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