Problems with Patriot Act
by Bob Barr

The USA PATRIOT Act was passed by the Congress in the weeks following the devastating attacks of September 11th 2001, and quickly signed by President Bush. The legislation was an amalgam of provisions, most of which had been sought unsuccessfully by federal law enforcement agencies during the Clinton Administration. It made both substantive and technical changes to many different sections of the federal criminal code. Many of the provisions are non-controversial and have had a positive impact on the government’s ability to fight acts of terrorism. However, there are a number of provisions that raise serious questions of constitutionality. It is these provisions that a number of individuals and organizations from across the political spectrum are seeking to have amended this year in the Congress.

For the first time since the Act went into effect, the Congress in 2005 held extensive oversight hearings into how the Act’s many provisions have been used, whether they have been used consistent with congressional intent (for example, do we want the government to continue using them in non-terrorism related investigations?), and whether changes need to be made. The Congress is now poised to decide whether to re-authorize the handful of provisions in the Act that “sunset” at the end of this year (the vast majority of the provisions in the USA PATRIOT Act do not sunset at the end of this year). This is why everyone (a) who is concerned with limiting government power to those powers it actually needs to fight terrorism – as opposed to all the power it would like to have; and (b) who is concerned with ensuring that in giving the government power to fight acts of terrorism we do not also surrender to it our vitally important rights secured by the Bill of Rights, should be engaged in this debate.

The Bush Administration has taken the position that the USA PATRIOT Act is an absolutely essential reason why the nation has not suffered a serious terrorist attack since 9-11. It is, of course, impossible to prove or disprove such an assertion; and, it seems obvious that there are many reasons why this situation has prevailed – enhanced airport security, better coordination of intelligence, greater public awareness, etc. The Administration’s position is that all of the Act’s provisions that are subject to the sunset provision, should be made permanent, and that the government actually needs even more power than it obtained in the 2001 Act.

What is it in the 2001 law that is problematic? First, it should be made clear, that those of us from across the ideological spectrum, who are expressing concerns over the USA PATRIOT Act, are not calling for its repeal, or for the repeal of any of its provisions. What we are calling for are modest limitations to be placed on the exercise of those powers; to ensure they are in accord with historic, constitutional standards of government efforts to gather evidence to be used against the citizenry.

The Fourth Amendment to the Constitution stands for the fundamental principle that the government cannot gather evidence against a person unless it has some tangible reason to believe that the person has violated the law (and that could include associating with terrorists). This reflects the principle that we are each, as citizens in a free society, clothed with a “sphere of privacy” that the government cannot “pierce” without a reason. If we were to take the position, reflected in provisions in the USA PATRIOT Act, that the government can invade our privacy and gather evidence that can be used against us based on no suspicion whatsoever that we’ve done anything wrong, but simply because the government wants to gather evidence as part of some generalized, “anti-terrorism” or “foreign intelligence” investigation, then we will have rendered that Fourth Amendment principle essentially meaningless. That is why this debate is so important.

The notion that the government can gather evidence based on reasonable suspicion that a person has violated the law, also applies to a suspicion that the person is suspected of operating as an “agent of a foreign power” (including a terrorist organization). This is appropriate; but in such a case also, the government should be held to the standard that it must first have some individualized suspicion that a person is an agent of a foreign power, and not that the government is on a fishing expedition.

In essence, these are the reasons why we are fighting so hard to ensure that some limitations be placed on a handful of the Patriot Act’s provisions; the following provide a few examples.

• The USA PATRIOT Act made it much easier than under previous law, to conduct so-called “sneak and peek” searches. These searches, while still requiring search warrants, can be conducted without letting the person know their home or business has been searched and items seized, for weeks, months or longer. While there certainly are instances in which the government should be allowed to conduct such searches (such as emergencies or in cases in which giving contemporaneous notice would harm the national security), and the government had such power even before the USA PATRIOT Act; allowing the government as it now can do, to use “sneak and peek” searches in any criminal investigation, including those unrelated to terrorism, simply because it is easier or more efficient to do so, is too broad a power. (This is found in Section 213 of the Act.) We know now that the vast majority of cases in which the government has sought sneak and peek warrants, have been for cases that have nothing to do with suspected terrorist activity.

• The USA PATRIOT Act also greatly loosened the standard under which the government could obtain secret court orders to gather evidence from third parties on any individual. Thus, under the Act, the government now can obtain records of a person’s library records, firearms records, medical records, or any other type of “tangible evidence” without showing the court any suspicion that the person has violated the law or is an agent of a foreign power. So long as the government agent tells a federal judge it wants the records because they are relevant to some undefined national security or foreign intelligence investigation, the judge must issue the order. This is far too loose a standard, made worse because the law also provides that a person who receives such an order cannot tell anyone they have received the order to turn over records, and if they do, they can be prosecuted for doing so. (This is found in Section 215 of the Act.)

• The loose standard under Section 215 -- whereby the government is able to access a citizen’s personal, private information in the hands of a third party, without having to show any suspicion whatsoever that the person or persons on whom it is seeking the information has any connection to a terrorist, a terrorist organization, a terrorist act, or a foreign power – is even more problematic in Section 505 of the USA PATRIOT Act. Under Section 505, federal agents are able to draft what are called National Security Letters (NSLs), which never go before a federal judge, in order to gain access to a wide category of personal information in the hands of banks and other entities. As with Section 215 court orders, NSLs require no link between the person or persons on whom the private information is being sought, and require no suspicion they have done anything wrong. With the Section 215 power, the government is at least forced to present a draft order to a judge; and even though under the current Act the judge has no real discretion to disapprove the government’s motion, this serves as at least a nominal check on government power. When the government seeks the same information via an NSL, however, there is no outside check whatsoever on the government’s power to access a citizen’s personal information in the hands of a third party.

• The USA PATRIOT Act includes a very broad definition of “domestic terrorism.” Any act that “appears intended to influence” government policy and violates any state or federal criminal law and that may be dangerous to human life, becomes, under Section 802 of the USA PATRIOT Act, an act of domestic terrorism; and then allows the government to use the expanded investigative tools available under the Act. This is far too broad a definition, and could ensnare persons who are not “terrorists” but who are simply protesting government policies, such as pro-life groups.

• Under the USA PATRIOT Act, the government can secure “roving wiretaps” without specifying either the identity of the target or the phone to be tapped. This is too broad a standard. Before being allowed to use such an invasive investigative technique as a roving wiretap (tapping any phone a person might use, whether it is their phone or someone else’s), it ought to be required to at least “ascertain” the identity of the target, or the phone(s) they are tapping.

These are just a few of the problematic provisions many from across the ideological spectrum are seeking to have amended (not removed, just amended) this year in the Congress. There is a piece of legislation, called the SAFE Act (Security and Freedom Enhanced Act), which has been introduced in the Senate by Republican Larry Craig, Democrat Richard Durbin, and others from both parties; and in the House by Representative Butch Otter and others from both the Republican and Democrat sides of the aisle. This legislation addresses several important concerns in the current Patriot Act. Both bills -- S. 737 in the Senate and H.R. 1526 in the House -- enjoy bipartisan support. All Americans who care about limited government, constitutional checks and balances, and providing necessary tools for law enforcement within those limits, should study this legislation, support it, and urge their Representatives and Senators to do likewise.

Late this year, both the House and the Senate had passed differing versions of legislation that would reauthorize those provisions in the USA PATRIOT Act that sunset at the end of 2005. The House version does not provide any meaningful, substantive relief to address the constitutional problems inherent in the original Act. The Senate version -- while not providing as strong remedies as are really needed to bring the Act back into balance with the Bill of Rights -- does at least provide important, substantive balance, and is therefore much preferable.

The primary objective is for Congress to ensure that Section 215 of the Act contains the critical Senate-passed reform requiring the government to provide facts directly connecting Americans’ private records to a suspected foreign terrorist or suspected terrorist act before accessing or collecting this sensitive, private information; information which likely then would be included in federal databases. (Note: Contrary to what the Justice Department has told Members of Congress, current law does not require the FBI to provide probable cause or even reasonable suspicion linking records sought to a suspected foreign terrorist or terrorist organization under the USA PATRIOT Act. Even if the law did require probable cause, this is simply too broad a standard to truly protect Americans’ Fourth Amendment right to privacy.)

Congress should apply a similar requirement to Section 505 of the USA PATRIOT Act, to require the government to have individualized suspicion that records sought are directly connected to suspected terrorists or terrorist organizations before demanding those records through NSLs. Although the Senate bill does not include such a reform to the NSL powers, recent reports revealing that the FBI has misused these powers to obtain innocent Americans’ records prove the necessity of this amendment, especially since NSLs are used far more frequently than Section 215 orders. For example, according to recent media accounts, the government has used the NSL power in the USA PATRIOT Act more than 30,000 times each year since 2001. This goes far beyond the basis on which Congress intended this extraordinary power to be used.

Moreover, Congress should also omit language that requires courts to defer to the government in any challenge to the gag order on NSLs, and that creates criminal penalties for talking about the receipt of an NSL, even without intent to obstruct an investigation.

While much of the current debate concerning reauthorization of the sunsetted USA PATRIOT Act provisions has centered around whether to enact new sunset provisions for some of the Act’s powers (and if so, whether they should be four-, seven- or ten-year sunsets), sunsets alone are not enough to cure the substantive problems with the law. Extending the expiration dates for unconstitutional powers does not address the inherent problems with such powers. Great damage to individual liberty can be accomplished in four years, seven years, ten years, or even one year. Therefore, if forced to choose between applying shorter sunset dates, and amending these controversial record search provisions to require a direct connection between records sought and a suspected foreign terrorist, amending the Act to require that the information sought must have some actual relevance to terrorism, suspected terrorists or terrorist organizations, is far more important. At least with such a provision, some of the protections in, and the philosophy underlying the Bill of Rights, will have been inserted into the USA PATRIOT Act equation.

Bob Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU. This first appeared in FindLaw.com

Email the Editor