ACLU Says House Committees Failed to Bring Patriot Act in Line with Constitution; Lawmakers Approved Cosmetic, Not Substantive, Reforms
July 13, 2005

WASHINGTON - The American Civil Liberties Union today expressed its disappointment with the two key House committees that considered legislation to reauthorize the Patriot Act, citing the unwillingness by lawmakers to reject a power grab by the administration and restore proper checks and balances to the anti-terrorism law. The Senate Judiciary Committee is expected to consider similar legislation soon.

"Lawmakers had the opportunity to fix what they got wrong the first time, and instead partisan politics prevailed," said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. "The administration made a power grab, requesting that these sweeping powers remain permanent. As both chambers consider these bills, we hope lawmakers will bring the sunsetting provisions, and others, in line with the Constitution by restoring checks and balances on government power."

The House Judiciary Committee met today to consider reauthorization of the Patriot Act. The flawed base bill would make the Patriot Act permanent and includes minimal, superficial changes. For example, the bill provides a right to counsel to those served with a Section 215 order for medical or other business records - but only a right to counsel to comply with, and not contest, the order. Even the Justice Department has agreed that there needs to be a clear right to consult an attorney to challenge a 215 order.

Also, there is no reform of Section 215 to require that there be any facts connecting any American to a foreign terrorist before their personal records -medical, tax, educational records, and any tangible things - are gathered by the government. However, the House Judiciary Committee did adopt an amendment to extend the sunset of Section 215 for 10 years. That's a step in the right direction, the ACLU said, but it could unwisely postpone debate and the reforms that need to take place.

At the House Permanent Select Committee on Intelligence, despite notification that the hearing would be open to the public, representatives from the ACLU and others were literally turned away at the door. The ACLU noted that Department of Justice officials - who are lobbying for a complete reauthorization and the expansion of the act - were allowed to enter the room.

That panel did accept two minor amendments to the underlying bill. Regarding the ability of the government to use "roving wiretaps" - the ability to tap any public or private phone linked to a specific target - committee members approved a "return requirement." That cosmetic change means agents would have to provide notice to the court after the surveillance is completed. Also, the ability of the government to use the Foreign Intelligence Surveillance Act against so-called "lone wolf" suspects, which was set to sunset at the end of the year, was extended until 2009.

In addition, several other amendments that would correct some of the problems with the act were offered - and defeated. Among these were an extension of all sunset provisions to a later date and a restriction on the use of Section 215 search orders to obtain library and bookstore records. An amendment offered by ranking member Representative Jane Harman (D-CA), which would adopt many of the carefully calibrated corrections included in the bipartisan Safe Act, was also defeated.

The Senate Judiciary Committee is expected to meet soon to consider its version of legislation to reauthorize the Patriot Act.

The ACLU noted several flaws with the Senate proposal. The use of secret orders to search Americans' personal records would remain in place, with diminished judicial oversight, and with the power still cloaked in secrecy. And, the bill fails to include a short, specific time limit on notification of the use of "sneak and peek" powers. Worse still, the Senate bill contains weak reporting requirements that would keep too much in the dark about how the Patriot Act is being used and possibly abused.

"While none of these bills grossly expands the Patriot Act like legislation adopted by the Senate Select Committee on Intelligence, none of these bills properly brings the Patriot Act in line with the Constitution," Graves said. "Congress must act to restore basic checks and balances against abuse."