Rolling back the Patriot Act

Friday, February 13, 2004

There has been insufficient national media attention to an important bill to revise sections of the Patriot Act that Sen. Larry Craig of Idaho, a vigorous conservative, introduced — with bipartisan sponsorship — on Oct. 15: The SAFE Act (the Security and Freedom Insured Act). Attorney General John Ashcroft wrote urgently to Sen. Orrin Hatch, Republican chairman of the Senate Judiciary Committee, of his strong objections to the bill.

In introducing the bill, Mr. Craig said: “I spend a lot of time on the ground in my home state of Idaho, and regardless of the pride Idahoans have in the success of the war on terrorism, many of them continue to raise concerns about the tools being used in that war.” He cited the Patriot Act among those concerns that “are shared by a wide regional and political spectrum.” The SAFE Act’s bipartisan cosponsors include Sen. John Kerry, Massachusetts Democrat.

Among the groups supporting the SAFE Act’s revisions to the Patriot Act are the American Conservative Union, the Gun Owners of America, the American Civil Liberties Union, the Free Congress Foundation and the American Library Association.
In a letter to the Senate, these groups emphasize that “the SAFE Act would prevent fishing expeditions into sensitive personal records by requiring that the records sought in foreign intelligence investigations pertain to an alleged spy, terrorist or other foreign agent.”

Right now, these Patriot Act critics say, “Federal agents can get a court to order that anyone’s library, bookstore or other records be turned over regardless of whether there is any suspicion about the person whose records are turned over.” Though Mr. Ashcroft says he hasn’t used that provision to search library records, he hasn’t said he would not.

These fishing expeditions by the FBI have become even more extensive. On Dec. 13, President Bush signed the 2004 Intelligence Authorization Act, which includes a provision giving the FBI the power — without having to go to any judge — to obtain a wide range of personal records through the greatly expanded use of the national security letters.

These letters, in the form of administrative subpoenas, allow the FBI to obtain such business records as data from financial institutions, credit card companies, airlines, stockbrokers and the U.S. Post Office. With no judicial supervision, these records are gathered and searched regarding persons who may be “relevant” to a national security investigation.

This is hardly a precise standard, and indeed invites abuse.

This additional invasion of individuals’ rights was originally part of a draft of Mr. Ashcroft’s Patriot Act II. But when that proposal was leaked by someone in the Justice Department, and then suffered considerable criticism, the Justice Department began to try to slip parts of that legislation into law piecemeal. The greatly enlarged scope of national security letters was enacted without public hearings.

Furthermore, in keeping with the overall secrecy of this government “security” operation, recipients of the national security letters are bound by law not to reveal they have received the letters.

So, it was hardly surprising that when Mr. Bush, during his State of the Union Address, told Congress that sections of the Patriot Act would expire on Dec. 31, 2005, there was applause by some congressional members who absolutely want those sections removed. The press said only Democrats applauded these expirations, but according to eyewitnesses there, Republican libertarians also expressed their reservations about the Patriot Act.

However, the president strongly urged Congress to renew those sections. So did Vice President Dick Cheney when he spoke before the American Conservative Union’s Political Action Conference Jan. 24. But the response from the audience was less than enthusiastic. And, as The New York Times reported, conservative Republican Rep. F. James Sensenbrenner, chairman of the House Judiciary Committee, “vowed that extending the act before reviewing its results by 2005 would happen ‘over my dead body.’”

The Patriot Act and other revisions of the Bill of Rights are in trouble in Congress. Moreover, it is time for Mr. Hatch to hold hearings on Mr. Craig’s SAFE Act (Senate Bill 1709) and other bipartisan bills that create responsible congressional oversight to counter this administration’s bypassing of the very Constitution it is sworn to protect. Mr. Hatch approves of the Patriot Act, but he must remember that he has also sworn to uphold the Constitution.

“More than two centuries ago,” the Jan. 20 Boston Globe reports “the patriots of Brewster (Mass.) shut down the Colonial courts on Cape Cod in one of the first acts of resistance” to King George III. Now, the Brewster Town Meeting “has formally condemned the … USA Patriot Act, united against the laws of a different leader named George.” So have 236 towns, cities and counties in 37 states, through Bill of Rights Defense Committee resolutions.

Congress has heard from these Americans. They must hear from more citizens to secure the liberties the president always assures us we are fighting to protect from the terrorists.

Published with the permission of Nat Hentoff. Originally posted on The Washington Times Web site on Feb. 9. Hentoff is a contributing editor to Editor & Publisher and also writes for The Village Voice in New York.

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