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‘Six-Pack’ Continues Push
to Ensure PATRIOT Act is Reauthorized
Denver, CO
– Senator Salazar along with a bipartisan group of Senators known as
the ‘Six-Pack,’ continued his push to reauthorize the PATRIOT Act so
that Americans can remain safe from terrorist attacks. The ‘Six-Pack’
sent a letter to Senate Judiciary Chairman Arlen Specter (R-PA) outlining
their commitment to passing the PATRIOT Act without interruption and
ensure it gives law enforcement agencies the tools they need to thwart
terrorists while providing protections for Americans’ civil liberties.
The letter is attached below.
“I will continue to work
tirelessly to assure that the PATRIOT Act continues — without interruption
— to protect all Americans,” said Salazar. “I will also work tirelessly
to pass the best possible PATRIOT Act, one that strengthens our law
enforcement agents’ ability to fight terrorists and protects Americans’
civil liberties and fundamental right to privacy. These issues are not
Republican or Democratic issues — they are issues that transcend partisan
politics entirely, and that is the way our bipartisan group is approaching
them.
January 6, 2006
The Honorable Arlen Specter
Chairman
U.S. Senate Committee
on the Judiciary
224 Dirksen Senate
Office Building
Washington, DC 20510
Dear Chairman Specter:
We were gratified that Congress
agreed to extend the expiring provisions of the USA PATRIOT Act at the
end of last year’s Congressional session. Although the PATRIOT Act must
be modified to better protect the constitutional rights of innocent
Americans, the important tools the original law provides law enforcement
in the fight against terrorism should not be allowed to expire.
This extension gives Congress
and the Administration more time to add additional civil liberties safeguards
to the PATRIOT Act reauthorization conference report – safeguards that
in no way will hinder law enforcement’s ability to investigate and prosecute
terrorists. As you will recall, last year we identified our most serious
concerns with the conference report in a Dear Colleague letter (a copy
of which is attached for your convenience).
We appreciate the hard work
you have done to bring the Congress close to agreement on a final PATRIOT
Act reauthorization bill. However, we still firmly believe that modest
but critical changes can and must be made to the conference report to
address the needs of law enforcement and protect the civil liberties
of law-abiding Americans.
We look forward to working
closely with you this month to pass an improved PATRIOT Act reauthorization
bill before the expiring provisions sunset on February 3rd.
Sincerely,
Larry E. Craig |
Richard J. Durbin |
John E. Sununu |
Russell D. Feingold |
Lisa Murkowski |
Ken Salazar |
| Chuck Hagel |
John F. Kerry |
Barack Obama |
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cc: The Honorable Patrick
J. Leahy, Ranking Member, Committee on the Judiciary
A copy of the dear colleague
letter sent December 14, 2005 is attached below.
December 14, 2005
Dear Colleague,
Prior to the Thanksgiving
recess, several Senators expressed strong opposition to the draft Patriot
Act reauthorization conference report that was circulated by the conferees.
We were gratified that Congress did not attempt to rush through a flawed
conference report at that time, and we hoped the conferees would make
significant improvements to the conference report before we returned
to session this month.
We write to express our
grave disappointment that the conference committee has made so few changes
to the conference report since then. And now, in the last week of the
session, the Senate is being asked to reauthorize the Patriot Act without
adequate opportunity for debate. If the conference report comes to the
Senate in the same form that it was filed in the House last week, we
will oppose cloture on the conference report. We urge you to do the
same.
As you know, the Senate
version of the bill, passed by unanimous consent in July, was itself
a compromise that resulted from intense negotiations by Senators from
all sides of the partisan and ideological divides. That bill did not
contain many Patriot Act reforms that we support, but it took important
steps to protect the freedoms of innocent Americans while also ensuring
that the government has the power it needs to investigate potential
terrorists and terrorist activity. Although the conference report contains
some positive provisions, it unfortunately still retreats too far from
the bipartisan consensus reached in the Senate. It fails to make some
vitally important reforms and in some areas actually makes the law worse.
Last week, Chairman Specter
circulated a Dear Colleague suggesting the conference report as drafted
addresses the concerns raised about potential civil liberties abuses.
We credit Chairman Specter for improving the conference report. However,
the most important substantive reforms from the Senate bill were excluded
from the conference report. The original cosponors of the SAFE Act (Senators
Craig, Durbin, Sununu, Feingold, Murkowski, Salazar) identified several
items before Thanksgiving as problematic and indicated they would not
support the conference report unless additional changes were made in
those areas. Those issues were not adequately addressed. They include
the following:
- The conference report
would allow the government to obtain library, medical and gun records
and other sensitive personal information under Section 215 of the
Patriot Act on a mere showing that those records are relevant to an
authorized intelligence investigation. As business groups like the
U.S. Chamber of Commerce
have argued, this would allow government fishing expeditions targeting
innocent Americans. We believe the government should be required to
convince a judge that the records they are seeking have some connection
to a suspected terrorist or spy, as the three-part standard in the
Senate bill would mandate.
Some conferees argue
that the language in the conference report would permit the government
to use the “relevance” standard only in limited, extraordinary circumstances,
and that the Senate bill’s three-part standard would continue to
apply in most circumstances. To the contrary, the conference report
never requires the government to demonstrate that the individual
whose records are sought is connected to a terrorist or spy; rather,
it permits the “relevance” standard to be used in every case.
It has also been asserted
that the government should not be required to abide by the three-part
Senate standard because the Department of Justice demonstrated in
a classified setting that “circumstances may exist in which an individual
may not be known to a foreign power or be a recognized terrorist
but may nevertheless be crucial to an authorized terrorism investigation.”
We are convinced, however, that the three-part standard provides
the necessary flexibility in such circumstances. Indeed, the government
need only show that the records they seek are relevant to the activities
of a suspected terrorist or spy, a very low burden to meet, but
one that will protect innocent Americans from unnecessary surveillance
and ensure that government scrutiny is based on individualized suspicion,
a fundamental principle of our legal system.
- 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. While
some have asserted that the FISA court’s review of a government application
for a Section 215 order is equivalent to judicial review of the accompanying
gag order, the FISA court is not permitted to make an individualized
decision about whether to impose a gag order when it issues a Section
215 order. It is required by statute to include a gag order in every
Section 215 order; the gag order is automatic and permanent in every
case. The recipient of a Section 215 order is entitled to meaningful
judicial review of the gag order.
- The conference report
does not sunset the National Security Letter (NSL) authority. In light
of recent revelations about possible abuses of NSLs, which were reported
after the Senate passed its reauthorization bill, the NSL provision
should sunset in no more than four years so that Congress will have
an opportunity to review the use of this power.
- The conference report
does not permit 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. As a result, the judicial review
provisions do not create a meaningful right to review that comports
with due process.
- The conference report
does not retain the Senate protections for “sneak and peek” search
warrants, as Chairman Specter’s letter suggests. The conference report
requires the government to notify the target of a “sneak and peek”
search within 30 days after the search, rather than within seven days,
as the Senate bill provides and as pre-Patriot Act judicial decisions
required. That seven-day period was the key safeguard included in
the Senate sneak and peek provision. The conference report should
include a presumption that notice will be provided within a significantly
shorter period in order to better protect Fourth Amendment rights.
The availability of additional 90-day extensions means that a shorter
initial time frame will ensure timely judicial oversight of this highly
intrusive technique but not create undue hardship on the government.
While the issues discussed
above are the core concerns about the conference report that the original
cosponsors of the SAFE Act asked to be modified, they are not the only
problems that we see with the conference report. There are a number
of other areas where we believe the conference report falls short.
“Library Records”
Provision (Section 215)
- Unlike the Senate bill,
the conference report requires a person who receives a Section 215
order to notify the FBI if he consults with an attorney and to identify
the attorney to the FBI. This will have a significant chilling effect
on the right to counsel. There is no such requirement in any other
area of law.
- The conference report
would give the government unilateral authority to keep all its evidence
secret from a recipient who is challenging a 215 order, regardless
of whether the evidence is classified. This will make it very difficult
for the recipient of a Section 215 order to obtain meaningful judicial
review that comports with due process.
- Under the conference
report, the target of a Section 215 order never receives notice that
the government has obtained his sensitive personal information and
never has an opportunity to challenge the use of this information
in a trial or other proceeding. All other FISA authorities (wiretaps,
physical searches, pen registers, and trap and trace devices) require
such notice and opportunity to challenge.
National Security
Letters (Section 505)
- The conference report
would allow the government to issue NSLs for certain types of sensitive
personal information simply by certifying that the information is
sought for a terrorism or espionage investigation. This would allow
government fishing expeditions targeting innocent Americans. As business
groups have argued, the government should be required to certify that
the person whose records are sought has some connection to a suspected
terrorist or spy.
- Unlike the Senate bill,
the conference report requires a person who receives an NSL to notify
the FBI if he consults with an attorney and to identify the attorney
to the FBI. This will have a significant chilling effect on the right
to counsel. There is no such requirement in any other area of law.
- Unlike the Senate bill,
the conference report for the first time imposes criminal penalties
on an NSL recipient who speaks out in violation of an NSL gag order,
even if the NSL recipient believes his rights have been violated.
- The conference report
for the first time gives the government the power to go to court to
enforce an NSL, effectively converting an NSL into an administrative
subpoena. An NSL recipient could now potentially be held in contempt
of court and subjected to serious criminal penalties. The government
has not demonstrated a need for NSLs to be court enforceable and has
not given any examples of individuals failing to comply with NSLs.
- The conference report
would give the government unilateral authority to keep all its evidence
secret from a recipient who is challenging an NSL, regardless of whether
the evidence is classified. This will make it very difficult for an
NSL recipient to obtain meaningful judicial review that comports with
due process.
- As with Section 215,
the conference report fails to require notice to the target of an
NSL if the government seeks to use the records obtained from the NSL
in a subsequent proceeding, and fails to give the target an opportunity
to challenge the use of those records.
“Sneak and Peek”
Searches (Section 213)
- The conference report
does not eliminate the catch-all provision that allows sneak and peek
searches any time that notice to a subject would “seriously jeopardize”
an investigation. This exception could arguably apply in almost every
case.
Roving Wiretaps
(Section 206)
- The conference report
does not include meaningful checks on “John Doe” roving wiretaps,
a sweeping power never authorized in any context by Congress before
the Patriot Act. A John Doe roving wiretap does not identify the person
or the phone to be wiretapped. Unlike the Senate bill, the conference
report does not require that a roving wiretap include sufficient information
to describe the specific person to be wiretapped with particularity.
- The conference report
does not require the government to determine whether the target of
a roving intelligence wiretap is present before beginning surveillance.
An ascertainment requirement, as has long applied to roving criminal
wiretaps, is needed to protect innocent Americans from unnecessary
surveillance, especially when a public phone or computer is wiretapped.
Pen Registers and
Trap and Trace Devices (Section 214 and 216)
- The conference report
retains the Patriot Act’s expansion of the pen/trap authority to electronic
communications, including e-mail and Internet. In light of the vast
amount of sensitive electronic information that the government can
now access with pen/traps, modest safeguards should be added to the
pen/trap power to protect innocent Americans, but the conference report
does not do so.
Domestic Terrorism
Definition (Section 802)
- The conference report
retains the Patriot Act’s overbroad definition of domestic terrorism,
which could include acts of civil disobedience by political organizations.
While civil disobedience is and should be illegal, it is not necessarily
terrorism. This could have a significant chilling effect on legitimate
political activity that is protected by the First Amendment.
It is not too late to remedy
the problems with the conference report and pass a reauthorization package
that we can all support. The House could take up and pass the bill the
Senate adopted by unanimous consent in July, or, if the additional modest
but critical improvements to the conference report that the original
cosponsors of the SAFE Act laid out prior to Thanksgiving are made,
we believe the conference report can easily and quickly pass both the
House and the Senate this month.
We appreciate that since
Thanksgiving, the conferees agreed to include four-year sunsets of three
controversial provisions rather than seven-year sunsets. But we should
not just make permanent or, in the case of three provisions, extend
for another four years the most controversial provisions of the Patriot
Act. The sunsets this year provide our best opportunity to make the
meaningful changes to the Patriot Act that the American public has demanded.
Now is the time to fix these provisions.
We urge you to join us in
opposing cloture on the conference report, and in supporting our call
for the conferees to make additional improvements. We still have the
opportunity to pass a good reauthorization bill this year. But to do
so, we must stop this conference report, which falls short of the meaningful
reforms that need to be made. We must ensure that when we do reauthorize
the Patriot Act, we do it right. We still can – and must – make sure
that our laws give law enforcement agents the tools they need while
providing safeguards to protect the constitutional rights of all Americans.
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