PATRIOT Bill: A Missed Opportunity
To Protect Americans’ Security And Civil Liberties
. . . Democratic Senators Seek Brief Extension Of
PATRIOT Law
To Strike Responsible Compromise On Law’s Reauthorization
WASHINGTON
(Thursday, Dec. 8) – Senator Patrick Leahy (D-Vt.) and fellow
Democratic senators said the proposed version of a bill to renew and
improve expiring provisions of the USA PATRIOT Act falls short of
striking the right balance to protect Americans’ civil liberties and
privacy, and they are proposing a brief extension of the current law
to give Congress time to improve the bill.
Leahy, the
ranking member of the Judiciary Committee, joined by the other
Democratic Senate conferees on the bill -- Senators Edward Kennedy
(D-Mass.), John Rockefeller (D-W.V.), and Carl Levin (D-Mich.) --
sent a letter to the conference chairman, House Judiciary Committee
Chairman James Sensenbrenner (R-Wis.), and to Senate Judiciary
Committee Chairman Arlen Specter (R-Pa.), urging a three-month
extension of the expiring provisions of the PATRIOT Act to give
Congress more time to craft a bipartisan compromise that could win
broad support.
“This was a
missed opportunity to produce a bipartisan bill that would protect
both Americans’ security and their rights and liberties,” said
Leahy, who served as the chief Democratic negotiator on the
conference committee. “This is too important to the American people
to rush through a flawed bill to meet some deadline that we have the
ability to extend. The way forward to a sensible and workable
bipartisan bill is clear. I am prepared to continue to work on these
important issues so Congress can get this right.”
Leahy was an
original co-author of the USA PATRIOT Act, enacted in October 2001,
just weeks after the Sept. 11 terrorist attacks. Several provisions
of the 2001 law are set to expire at the end of this year under
sunset provisions that Leahy and former House Majority Leader Dick
Armey (R-Texas) included in the final version of the 2001 law, as a
way to improve congressional oversight of the new powers given to
the government. Earlier this year, Leahy supported and voted for
the Senate version of the USA PATRIOT Act renewal bill, which
included several new “sunshine” provisions advanced by Leahy, to
improve oversight and accountability, as well as continuing some of
the 2001 law’s sunset provisions. The Senate bill won unanimous,
bipartisan support.
Leahy said there
are several areas where the proposed conference report falls short,
including:
Inadequte
Checks on National Security Letters (NSLs):
-
The report
contains no sunset on National Security Letter (NSL)
authorities, despite recent revelations about the use of these
authorities to spy on innocent Americans.
-
The
conference report does not provide meaningful judicial review of
an NSL’s gag order. Under current law, the recipient of an NSL
can challenge the NSL in court. The conference report changes
that by requiring the court to accept as conclusive the
government’s assertion that a gag order should not be lifted,
unless the court determines the government is acting in bad
faith.
-
The
conference report allows the government to use secret evidence
to oppose a judicial challenge to an NSL. At the government’s
request, the court must review any government submission in
secret, whether or not it contains classified material.
-
The
conference report fails to protect the records of innocent
Americans collected by means of an NSL. Such records may be
kept forever in government databases, shared with the
intelligence community, and used for datamining.
Inadequate
Checks on FISA Court Orders For Tangible Things (Section 215)
-
Unlike the
Senate bill, the conference report allows the government to
obtain sensitive personal information on a mere showing of
“relevance,” striking the three-part test that was the basis of
the Senate compromise. This allows the government to obtain
this information without being required to convince a judge that
the records they seek have some connection to a suspected
terrorist or spy.
-
Unlike the Senate bill, the conference report does not permit
the recipient of a Section 215 order to challenge its automatic,
permanent gag order. Courts have held that similar restrictions
violate the First Amendment. The recipient of a Section 215
order would not be entitled to meaningful judicial review of the
gag order under the current version of the report.
-
The conference reports allows the government to use secret
evidence to oppose a judicial challenge to a Section 215 order.
At the government's request, the court must review any
government submission in secret, whether or not it contains
classified material.
#
# # # #
(Below
are Senator Leahy’s Remarks on the Proposed Conference Report)
Remarks Of Senator Patrick Leahy (D-Vt.),
Ranking Member, Senate Judiciary Committee,
On The Proposed Conference Report
On Reauthorization Of The USA PATRIOT Act
News Conference
Senate Radio-TV Gallery
Thursday, Dec. 8, 2005
Security and liberty are not and should not be
mutually exclusive goals in a nation conceived in liberty. The
American people know that, and all of us here deeply believe that.
It is our job in Congress to work as hard as it takes to protect
both the security and the freedoms of the people we represent.
We have succeeded in making this a better bill
than the one that was almost filed before Thanksgiving, but it can
be made a better bill – a bill as good as the American people expect
and deserve from us.
A nation built on freedom, as America is, can
do better, and if we work together, we will do better.
Though I cannot sign the conference report in
its current form, I do want to express my appreciation to Chairman
Sensenbrenner and Chairman Specter, who have cooperated in
addressing several of the problems and concerns about the earlier
draft of this conference report. Chairman Specter and I have had
many, many discussions about these issues, and he has acted in good
faith throughout this lengthy process. I appreciate his efforts.
As chairman of the Judiciary Committee at that
time, I led the Senate’s negotiations on the original USA PATRIOT
Act. And former House Majority Leader Dick Armey and I insisted on
including the sunset provisions that have contributed to
congressional oversight and that are the reason we are going through
this review and renewal process.
In this effort to improve these laws, I
advanced several sunshine provisions to improve oversight and
accountability, as well as continuing some of the 2001 law’s sunset
provisions. These were included in the Senate’s version of the
bill, and most are in the conference report.
The conference
committee had an opportunity to adjust the PATRIOT Act’s expiring
provisions to protect the rights and liberties of all Americans more
effectively. Regrettably, the opportunity was lost when Democratic
conferees were excluded from key negotiations and the conference
failed to meet to consider and vote on amendments. The resulting
conference report falls short of what the American people have every
reason to expect Congress to achieve in defending their rights while
advancing their security.
The Senate bill,
which the Senate Judiciary Committee and then the Senate adopted
unanimously, reached a far better balance.
The
reauthorization of the PATRIOT Act must have the confidence of the
American people. The Congress should not rush ahead to enact flawed
legislation to meet a deadline that is within our power to extend.
We owe it to the American people to get this right.
If a satisfactory bill cannot be achieved by
the end of the year, I will be proposing a three-month extension for
the expiring provisions of the PATRIOT Act. Congress has had years
to improve and renew these provisions of the PATRIOT Act, but has
failed to act expeditiously. If three more months are needed to
make this a better bill, then we should take and prudently use that
time. This is too important to the American people to rush through
a flawed bill to meet some deadline that we have the ability to
extend.
The way forward to a sensible and workable
bipartisan bill is clear. All of us are prepared to continue to
work on these important issues so Congress can get this right.
Let me touch briefly on some of the flaws in
this conference report that are still troubling to Democratic and
Republican senators, and to civil liberties advocates on both the
right and the left.
Section 215
I am disappointed that the conference report
did not come out closer to the Senate bill, especially on the
standard for Section 215 – the so-called “library provision.” As it
stands, the government can compel the production of business records
merely upon a showing that the records were “relevant” to a
terrorism investigation.
The Senate bill would have required the
government to show that the records had some connection to a
suspected terrorist or spy. This is a common-sense protection that
would not hamstring the government, but would prevent government
overreaching.
NSLs
The conference report also falls short on its
treatment of National Security Letters, or NSLs. These are, in
effect, a form of secret administrative subpoena. They are issued
by FBI agents, without any court supervision, and recipients are
prohibited from telling anyone that they have been served.
The conference report does not provide
meaningful judicial review of an NSL’s gag order. It requires the
court to accept as conclusive the government’s assertion that a gag
order should not be lifted, unless the court determines the
government is acting in bad faith. Despite strong opposition to
this provision from the right and the left, the House Republicans
refused to strip it out. House Republicans also refused, as an
alternative, to impose a “sunset” on NSL authorities, to ensure
closer oversight of, and public accountability for, their use.
The conference report also is loaded with
extraneous provisions that have nothing to do with the expiring
PATRIOT Act authorities, or even with terrorism. I am particularly
concerned about the habeas provisions that were snuck into the
conference report after all Democratic conferees were shut out of
the room. These provisions have never been approved by either
Judiciary Committee, and have been strongly opposed by the U.S.
Judicial Conference and others.
# # #
# #
(Letter from the Senate Democratic Conferees)
December 8, 2005
The Honorable
Arlen Specter
Chairman
U.S. Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington D.C. 20510
The Honorable James Sensenbrenner
Chairman
U.S. House of Representatives Committee on the Judiciary
2449 Rayburn House Office Building
Washington D.C. 20515
Dear Chairman Specter and Chairman Sensenbrenner:
We write to you about our decision not to sign the House-Senate
conference report on USA PATRIOT Act reauthorization. The
conference committee had an opportunity to adjust the PATRIOT Act’s
expiring provisions to protect the rights and liberties of all
Americans more effectively. Regrettably, the opportunity was lost
when Democratic conferees were excluded from key negotiations and
the conference failed to meet to consider and vote on amendments.
The resulting conference report falls short of what the American
people have every reason to expect Congress to achieve in defending
their rights while advancing their security.
The American people do not believe that
security and liberty are mutually exclusive goals, and they are
right. For four years, the protection of civil liberties has been
at the forefront in debates over the PATRIOT Act. The conference
report makes some improvements to the current Act, but it fails to
make others, and even takes several steps backward. We welcome the
enhanced oversight provisions, but they do not offset the report’s
deficiencies. The Senate bill, which the Senate Judiciary Committee
and then the Senate adopted unanimously, reached a far better
balance.
The reauthorization of the PATRIOT Act must have the confidence of
the American people. The Congress should not rush ahead to enact
flawed legislation to meet a deadline that is within our power to
extend. We owe it to the American people to get this right.
If a satisfactory bill cannot be achieved by
the end of the year, we propose a three-month extension for the
expiring provisions of the PATRIOT Act. Congress has had years to
improve and renew these provisions of the PATRIOT Act, but has
failed to act expeditiously. The deadline that Congress imposed to
ensure oversight and accountability should not become a barrier to
achieving bipartisan compromise. This is a vital debate, and these
are vital issues. If three more months are needed to make this a
better bill, then we should take and prudently use that time.
Sincerely,
_____________________________
_____________________________
PATRICK
LEAHY JOHN D.
ROCKEFELLER IV
Ranking Member,
Vice
Chairman,
Committee on the Judiciary
Select Committee on Intelligence
_____________________________
_____________________________
EDWARD M.
KENNEDY CARL LEVIN
United States
Senator United
States Senator
