ACLU Memo Reacting to Podesta "Working Group" Patriot Act Proposal

ACLU Memo Reacting to Podesta "Working Group" Patriot Act Proposal

To: Interested Persons

From: Timothy H. Edgar, National Security Policy Counsel
Lisa Graves, Senior Counsel for Legislative Strategy

Re: June 17, 2005 Proposals for Patriot Act by Podesta-Falkenrath Former Government Officials Working Group

The ""Bipartisan Working Group of Foreign Government Officials,"" convened by John Podesta, President of the Center for American Progress, and Richard Falkenrath, a Senior Fellow at the Brookings Institution, has released a memorandum outlining a set of proposals for amending some parts of the Patriot Act.

The Working Group's proposal fails to reform section 215 of the Patriot Act to ensure that the government does not obtain sensitive records - including library records, bookstore records, gun shop records, financial records - about people who are not suspected of being terrorists, spies, or foreign agents.

The Working Group's proposal would also preserve without change one of the most controversial provisions of the Patriot Act: section 213, which allows the government to get a court order to secretly break into a person's home, go through their private documents, download the contents of their computer, and not tell the person about it for weeks or months or even an indefinite time.

While the Working Group's proposal does offer a number of useful ideas for amending the Patriot Act that we endorse as far as they go, because of these and other serious weakness the proposal does not do enough to reform the Patriot Act to assure the American people that their liberties will be protected.

Don't limit to expiring provisions. First, we take strong issue with the Working Group's artificial limitation of focus to only those sixteen provisions of the Patriot Act subject to the sunset clause. Many of the most controversial Patriot Act provisions were not included in the sunset clause. These include:

• section 213 (delayed notice ""sneak and peek"" criminal searches) · section 411 (expanding terrorism grounds of removal retroactively to include speech and association)
• section 412 (providing a special process for mandatory, indefinite detention of non-citizen terrorism suspects) · section 505 (expanding FBI ""national security letter"" power to get documents without a court order)
• section 802 (overbroad definition of domestic terrorism)
• section 805 (expanding crime of ""material support of terrorism."")

As many defenders of the Patriot Act have noted, additional civil liberties concerns have been raised with respect to government powers outside of the Patriot Act, including misuse of the material witness statute and standards for immigration detention. Congress should not limit its oversight, review, and amendment of the government's anti-terrorism powers simply to an artificial and arbitrary list of sixteen provisions set to expire this year.

Include a new sunset date; don't re-authorize indefinitely. Second, we are disappointed that the Working Group proposal does not endorse a useful idea that has been gaining support among many members of Congress - extending some powers temporarily, rather than permanently, so that Congress has an additional opportunity to review them.

In particular, this does not square with the Working Group's endorsement of a series of amendments, most of which are extremely useful, for ""further consideration by the Congress."" If these amendments are not approved this year, Congress is unlikely to act on those useful ideas in the future unless another ""sunset clause"" forces additional action. Extending the sunsets is also needed to promote congressional oversight and encourage the government to disclose how it is using the intrusive powers of the Patriot Act.

Comments on the Specific Proposals

General comments. Except as explained below, we endorse the Working Group's suggested amendments to expiring Patriot Act provisions if (1) Congress also addresses the other issues discussed above, (2) Congress renews the amended provisions temporarily, rather than permanently and (3) Congress acts now on the amendments suggested for ""further consideration,"" all of which we endorse. If Congress does not act now on the ""further consideration"" amendments, that strengthens the argument for setting a new sunset date.

The following amendments would need to be strengthened to receive our endorsement:

Sections 203 (b) & (d). We agree with after-the-fact notice to court for wiretap information, but notice should also be provided for other information gathered pursuant to other judicial authority (e.g., search warrants).

Section 206. The Working Group's suggested amendment should be strengthened to ensure that 1) roving wiretaps actually identify the target (a mere description is not enough) and 2) the ""ascertainment"" requirement should be the clearer standard that is provided in the SAFE Act - that ""the presence of the target at a particular facility or place is ascertained by the person conducting the surveillance.""

Section 215. The relevance standard suggested is insufficient to protect the privacy of innocent Americans, because in intelligence investigations, relevance is defined by what the government is seeking to find out. Intelligence investigations are broader - they are not limited by the criminal code. Rather, they can investigate legal activity - including First Amendment activities. In the context of investigation to ""protect against"" terrorism, relevance has little meeting because the investigation could be so broad. As a result, there needs to be a requirement that records obtained using a secret court order that is not part of a criminal investigation pertain to a terrorist, spy or other foreign agent. In addition, challenges to a records order should not be limited to the FISA court, as the Working Group appears to propose. Finally, to obtain a secrecy order, the burden should be on the government to establish a specific need to a court. The burden should not be on the recipient to challenge the order, and the secrecy order should not be indefinite.