Patriot Act Said to Need More Transparency Before Passage

Last week, conferees from the House and Senate agreed on reauthorizing the measure (HR-3199). The deal, a product of months of talks, would renew all 16 provisions of the Patriot Act expiring Dec. 31 and make 14 of the provisions permanent. The House wanted a 10-year sunset; the Senate, 4 years, CDT said. The latest deal calls for 4 years. But the issue of what standards should govern use of the Patriot Act’s powers was left out of the debate, the groups said. The House could vote on the conference report as soon as today (Wed.) or Thurs., and a Senate vote would follow.

Attention to the law rose over the weekend as President Bush urged Congress to “finish the job” and vote promptly. In his Sat. radio address, Bush said the law has been “a strong weapon for going after the terrorists” the past 4 years and that police and intelligence personnel have put it to “wise and effective use while protecting our civil liberties.”

But documents obtained by EPIC hint that some Patriot Act-empowered actions have eroded civil liberties and privacy. The paperwork, gotten via Freedom of Information Act (FOIA) request earlier this year, showed inquiries running for months without proper reporting or oversight, an FBI agent’s unlawful seizure of financial records and an unidentified intelligence agency’s illegal physical search, EPIC said Tues. Other documents suggest the FBI has sought to bypass an internal procedure for reviewing the legal basis for Sec. 215 searches, EPIC said.

That’s just the tip of the iceberg, EPIC officials told reporters. In expanding intelligence agencies’ surveillance power, the Patriot Act also “cloaked the government in a new veil of secrecy,” EPIC Exec. Dir. Marc Rotenberg said. The law diminishes the public’s ability to monitor and assess the govt.’s search authority because the intelligence community came to rely more heavily on the Foreign Intelligence Surveillance Act (FISA) court orders than searches under the federal Wiretap Act.

An EPIC chart of warrants issued under both showed that in 2003 and 2004, FISA orders exceeded Wiretap Act warrants. That troubles privacy advocates because “public reporting under FISA is the most minimal type there can be,” Rotenberg said. Those revelations, and others expected from documents released in coming weeks, raise new questions about the law’s renewal, and Congress shouldn’t reinstate any part of it until some questions are answered, he said.

The papers were released in response to a suit against the Justice Dept. Last month, a federal judge ordered the FBI to provide more information to EPIC about use of the Patriot Act, saying FBI responses to the group’s FOIA request had been “unnecessarily slow and inefficient.” U.S. Dist. Judge Gladys Kessler, D.C., ordered the govt. to disgorge 1,500 pages every 2 weeks until EPIC’s FOIA request was filled. The group has received 2 sets of documents related to near-expired Patriot Act provisions and how the law’s power has been used. But most of the material processed has been withheld or released with redactions, EPIC Gen. Counsel David Sobel said. It’s been EPIC’s experience that less than 50% of actual material requested from the FBI sees the light of day, he said.

Given the amount of data that could appear as EPIC gets more documents, Sobel, like Rotenberg, urged Congress not to rush to vote on the Patriot Act. Senate Judiciary Committee Ranking Member Leahy (D-Vt.) introduced legislation Mon. that would extend sunset sections 3 months, offering time to tune the bill. Leahy’s move was backed by a bipartisan group that included Republicans -- Sununu (N.H.), Murkowski (Alaska) and Craig (Idaho) -- plus Democrats Rockefeller (W.Va.), Kennedy (Mass.), Levin (Mich.), Durbin (Ill.), Stabenow (Mich.) and Salazar (Colo.).

The sunset provisions sought to ensure Congress could revisit and refine the Patriot Act in a few years, Leahy said in floor remarks Tues. But the Administration and some House and Senate leaders have “squandered key opportunities to improve the Patriot Act” and the conference report “falls short of what the American people expect and deserve from us,” he said: “We owe it to the American people to get this right.”

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The ACLU urged senators to reject the deal and to vote against cloture. “The Senate must stand true to its role as the ’saucer that cools the tea,’ and reject pressures to hastily pass a faulty bill,” said Washington Legislative Office Dir. Caroline Fredrickson. The group spoke out as Sens. Feingold (D-Wis.) and Sununu and members of Patriots to Restore Checks & Balances gathered to criticize the conference report, which fails to require individual suspicion before the FBI can harvest financial, medical or library records. At last count, ALA said it had heard that 38 Democrats and as many as 8 Republicans are ready to vote no on cloture.

ALA opposed the report despite “minor progress” in the Senate, Assistant Dir.-Govt. Relations Patrice McDermott told us. The report “really does not move the Patriot Act to requiring truly meaningful and substantive limitations on Sec. 215,” she said. The report doesn’t limit the contentious National Security Letter (NSL) provision, which lets the FBI demand private records from ISPs, banks, credit agencies, phone companies and other businesses. McDermott said she hopes legislation will be introduced soon specifically addressing NSLs. She told us she doesn’t think this is realistic in the bill under consideration.