Re:      Vote “no” on conference report agreement on H.R. 3199, the Patriot Act Improvement and Reauthorization Act

Dear Member of Congress:

On behalf of the American Civil Liberties Union and its almost 600,000 members, dedicated to keeping America safe and free, we write to explain our opposition to passage of H.R. 3199, the Patriot Act reauthorization conference report.  Unfortunately, despite the best efforts of many members of Congress to improve this bill, it remains deeply flawed.  We urge you to vote “no” on final passage.

The Patriot Act was passed six weeks after September 11, 2001 in an atmosphere that allowed for little debate about the sweeping powers it granted the Executive Branch, including many provisions that expanded secret surveillance under the Foreign Intelligence Surveillance Act (FISA).  Congress wisely recognized this by including a “sunset clause” that required reconsideration of some of its intrusive surveillance powers within four years.

Given the administration’s extraordinary assertions of presidential power to authorize the National Security Agency (NSA) to engage in intrusive surveillance of Americans outside of FISA, it is more vital than ever that Congress reassert its rightful role by correcting the flaws in the Patriot Act.  

Unfortunately, the major flaws in the Patriot Act’s most sweeping provisions remain uncorrected in the final conference report and passage of the reauthorization bill will actually make matters worse for civil liberties in significant ways:

• The government will still be able to use National Security Letters and secret court orders under section 215 to obtain a wide array of private, confidential records – including medical, financial, library and bookstore and gun purchase records – with no evidence linking those records to a suspected terrorist or spy.

• Those records demands still contain an automatic and potentially permanent gag order, and the right to challenge the gag order is made virtually illusory by the bill’s requirement that a court accept the government’s “national security” certification supporting a gag order as “conclusive.”
  
• Secret physical searches of homes and offices will remain available in any federal case under a vague standard, and notice can be delayed for weeks, months or even longer.  The Justice Department admits that at least 88% of such searches actually had nothing to do with terrorism.
  
• Roving wiretaps still lack the requirement to name a target or a facility being monitored and without the safeguard that government agents verify that a suspect is actually using the facility before eavesdropping on private conversations.
  
• The bill contains many other provisions, unrelated to the Patriot Act, that harm civil liberties – for example, it expands the Secret Service’s power to impose “exclusion zones” to apply to non-Pesidential events, and it increases fines and criminal penalties the Treasury Department has used to coerce non-profits and other businesses into checking employees against flawed government lists.

The debate over reauthorization of these provisions represented an historic opportunity to address some of the serious flaws in the Patriot Act that have led to justified criticism of the law.  Calls for meaningful reforms have come from an extraordinarily diverse array of organizations across the political spectrum.

Nearly 400 communities and the legislatures of seven states have taken a strong stand for meaningful reforms of the Patriot Act, urging Congress to renew the law only if its most significant flaws were addressed.  As a result of these calls for reform, many members of Congress on both sides of the aisle came together to lead an effort to better protect civil liberties.  In an era marked by partisanship, these bipartisan efforts on behalf of civil liberties were remarkable in their own right, twice forcing delays in approval of a flawed reauthorization bill.

Disappointingly, administration intransigence has prevented those members who expressed serious civil liberties concerns from achieving meaningful changes to the conference report.  The agreement reached with the administration accomplishes little of substance.  First, the agreement clarifies that the recipient of a national security letter will be able to consult a lawyer without notifying the government of the attorney’s identity.  While welcome, the administration has already conceded the obvious point that recipients should be allowed to consult attorneys.

Second, the agreement makes clear that the right to challenge a gag order applies to secret court orders under section 215 as well as National Security Letters.   However, this provision actually makes current law worse.  While a gag order is no longer indefinite, it will last for an initial one-year period that can be renewed indefinitely at the government’s discretion.  Worse still, the bill includes language making “conclusive” a certification of harm to national security by a high-ranking government official from lifting the gag.  Current law does not make government certifications conclusive on the courts.  Federal courts have, in fact, rejected certifications by such high-ranking officials where they fail to provide sufficient facts to meet the compelling interest standard demanded by the First Amendment for a prior restraint on speech.

Finally, while the conference agreement reflects a desire to exclude libraries from the reach of National Security Letters if they are acting in their “traditional roles” and not as Internet Service Providers, it is not clear the conference language accomplishes that goal.  The language would clearly subject libraries to National Security Letters so long as they provide communications services under a definition that is broad enough that it could cover many libraries that do no more than provide basic Internet access.  None of these changes to the final conference report addresses the fundamental flaws of the Patriot Act – the flaws that led to the nationwide movement to correct it. 

We urge a “no” vote on final passage.  Thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office