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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