Calling for Patriot Act Reform

On Oct. 26, 2001, in the wake of the fear ignited by the terrorist attacks of Sept. 11, Attorney General John Ashcroft rammed through Congress and President George W. Bush signed into law the USA Patriot Act, a 342-page bill amending more than a dozen federal statutes, with virtually no debate. By vastly expanding the government's authority to secretly search private records and monitor communications, often without any evidence of wrongdoing, the Patriot Act invaded the right of privacy and upended constitutional checks and balances.

Several Patriot Act provisions will expire on Dec. 31, 2009. The Obama Administration is seeking to renew these provisions, but is open to reforms. This gives Congress and the American people a critical opportunity to review and evaluate the Patriot Act and alter or remove provisions that have been abused or are ineffective. Congress has a duty to engage in the kind of real oversight that was so sorely missing during the Bush Administration.

The Fourth Amendment to the U. S. Constitution protects individuals against "unreasonable searches and seizures." "The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." Marcus v. Search Warrant, 367 U.S. 717, 729 (1961). The Patriot Act unconstitutionally expanded the government's authority to invade people's privacy with little or no evidence of wrongdoing.

Section 206 of the Patriot Act authorizes the government to obtain "roving wiretap" orders from the Foreign Intelligence Surveillance Court whenever a subject of a wiretap request uses multiple communications devices. Unlike roving wiretaps authorized for criminal investigations, Section 206 does not require the order to identify either the communications device to be tapped or the individual against whom the surveillance is directed. The reauthorized provision does not require the government to name the target, or to make sure its roving wiretaps are intercepting only the target's communications. The power to intercept a roving series of unidentified devices of an unidentified target provides government agents with an inappropriate level of discretion reminiscent of the general warrants that so angered the American colonists.

Section 215 of the Patriot Act provides a sweeping grant of authority for the government to obtain secret Foreign Intelligence Surveillance Court orders demanding "any tangible thing" it claims is relevant to an authorized investigation regarding international terrorism or espionage. Known as the "library provision," Section 215 significantly expands the types of items the government can demand and lowers the standard of proof necessary to obtain an order. Section 215 only requires the government to claim the items sought are "relevant" to an authorized investigation and the government can obtain orders for private records or items belonging to people who are not even under suspicion of involvement with terrorism or espionage, including U.S. citizens and lawful

resident aliens.

National Security Letters are secret demand letters issued without judicial review to obtain sensitive personal information such as financial records, credit reports, telephone and e-mail communications data and Internet searches. The Federal Bureau of Investigations had authority to issue these letters under four separate statutes, but these authorities were significantly expanded by Section 505 of the Patriot Act, which increased the number of officials who could authorize the documents and reduced the standard necessary to obtain information with them, requiring only an internal certification that the records sought are "relevant" to an authorized counterterrorism or counter-intelligence investigation. The Patriot Act reauthorization made these provisions permanent. The statutes now allow the FBI and other executive branch agencies to obtain records about people who are not known - or even suspected - to have done anything wrong.

The first two Inspector General audits, issued from 2003

through 2005, were released in March of 2007. They confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities. Twenty-two percent of the audited files contained unreported legal violations. Most troubling, FBI supervisors used hundreds of illegal "exigent letters" to obtain telephone records without National Security Letters by falsely claiming emergencies.

In March, 2008, the Inspector General released a second pair of audit reports, which identified many of the same problems discovered in the earlier audits. This audit revealed that high-ranking FBI officials improperly issued eleven "blanket National Security Letters" in 2006 seeking data on 3,860 telephone numbers, none of which complied with policy and eight imposed unlawful non-disclosure requirements on recipients. Moreover, the letters were written to "cover information already acquired through exigent letters and other informal responses."

The Inspector General's audits also showed the number of FBI requests for Section 215 orders were sparse by comparison to the number of National Security Letters issued. The disparity seems to suggest that FBI agents were bypassing judicial review in the Section 215 process by using National Letters of Security in a manner not authorized by law. For example, after the Foreign Intelligence Surveillance Court denied an FBI request for a Section 215 order on First Amendment grounds, the FBI instead used National Security Letters to obtain the same information.

Expanded authorities that allow the FBI to demand information about innocent people who are not the targets of any investigation should be repealed and prior standards limiting requests to information about terrorism suspects and other agents of foreign powers should be reinstated. Instead of allowing the FBI to self-certify that it has met statutory requirements, judicial oversight of all Patriot Act authorities is necessary.

Laws prohibiting material support for terrorism, which were expanded by the Patriot Act, are in desperate need of re-evaluation and reform. Intended as a mechanism to cut off the funding of terrorist organizations, these statutes instead undermine legitimate humanitarian efforts and perpetuate the perception that U.S. counterterrorism policies are unjust.

Section 805 of the Patriot Act expanded the already overbroad definition of "material support and resources" to include "expert advice or assistance." The statute does not require the government to prove that the person specifically intended for his or her support to advance the terrorist activities of the designated organization. In fact, the government has argued that those who provide support to designated organizations can run afoul of the law even if they oppose the unlawful activities of the designated group, intend their support to be used only for humanitarian purposes and take precautions to ensure that their support is indeed used for these purposes. This broad interpretation of the material support prohibition effectively prevents humanitarian organizations from providing needed relief in many parts of the world where designated groups control schools, orphanages, medical clinics, hospitals and refugee camps.

The First Amendment protects an individual's right to join or support political organizations and to associate with others in order to pursue common goals. The material support provisions impermissibly criminalize a broad range of First Amendment activity, both as a result of their sweeping, vague terms and because they do not require the government to show that a defendant intends to support criminal activity of a designated foreign terrorist organization.

The material support statutes should be amended to require specific intent to further an organization's unlawful activities before imposing criminal liability, the overbroad and impermissibly vague language, such as "training," "service" and "expert advice and assistance," should be removed from the definition of material support and proper notice, due process and meaningful review requirements should be added to the designation process, permitting defendants charged with material support to challenge the underlying designation in their criminal cases.

The National Security Letter Reform Act of 2009 sponsored by Representative Jerrold Nadler, as well as the JUSTICE Act introduced by Senators Russ Feingold and Richard Durbin, would enact much needed reforms to the Patriot Act and deserve the support of all who believe that the United States can be both safe and free.

Certainly there are threats to our security, as there always have been, but our nation can and must address those threats without sacrificing our essential values or we will have lost the very freedoms we strive to protect.

Stephen Rohde, a constitutional lawyer and author, is chair of the American Civil Liberties Union Foundation of Southern California.