Checks and Balances in Patriot Conference Report
Congressman John Conyers, Jr.
Michigan, 14th District
House Judiciary Committee
Dean, Congressional Black Caucus
For Immediate Release:
Conyers and House Democratic Conferees Call for Restoration of Checks and Balances in Patriot Conference Report
Washington, DC: Today, Rep. John Conyers, Jr. and 8 additional Members of Congress sent a letter to House Judiciary Committee Chairman F. James Sensenbrenner and Senate Judiciary Committee Chairman Arlen Specter regarding the latest draft of the Patriot Act Conference Report:
December 6, 2005
Dear Chairmen Sensenbrenner and Specter:
We urge that the ultimate conference report reauthorizing the PATRIOT Act require that records and things obtained under Section 215 of the PATRIOT Act and the National Security Letter authority have some connection to suspected terrorists. We also request that both authorities sunset in four years.
The latest draft report leaves the standard for obtaining "any tangible thing" under the Foreign Intelligence Surveillance Act at simply "relevance" to an investigation. While limited to intelligence investigations, this authority is so broadly written that it permits fishing expeditions. Without requiring that there be some connection between the things sought and an agent of a foreign power, the sensitive personal records of innocent Americans could be gathered with these orders. For example, there is nothing in this standard that would prevent the Federal Bureau of Investigation from asking a library to turn over its circulation list of everyone who had checked out a book on Islam since the attacks of September 11.
Even worse, the latest draft theoretically lessens the burden on the government, creating a presumption that all records, 1) pertaining to a suspected terrorist, 2) concerning the activities of a suspected terrorist, and 3) relating to anyone who has ever had contact with a suspected terrorist, are relevant to an investigation. Current law gives the court the authority to decide independently whether a given item is relevant; this new sweeping proposal would force the court to accept the certification of the government since FISA orders are sought ex parte, in camera and before a secret court, preventing the presentation of any evidence to overcome the presumption. The Senate language was intended to limit the use of Section 215 orders to items relevant to an ongoing terrorism investigation and also related to the activities of an agent of a foreign power or someone known to or in contact with an agent of a foreign power. Instead, the provision in the latest draft turns the Senate language on its head, making anything related to someone in contact with or known to an agent of a foreign power presumptively relevant to an ongoing terrorism investigation.
The draft report also leaves the standard for obtaining a National Security Letter at relevance, allowing the government to obtain medical insurance, bank, credit, real estate and other records without any prior judicial approval. It has been reported that upwards of 30,000 NSLs are issued each year. The breadth of the government's use of this tool and the fact that significant information related to the use of NSLs was obtained only after our PATRIOT oversight hearings and consideration of the House bill, means that further action is requires in the context of the conference report.
We therefore request that the final report incorporate the three prong test of S. 1389 to Section 215 orders and National Security Letters. That standard did not create an effectively unrebuttable presumption in favor of the government. Instead, it limited the universe of acquirable documents and things to those that are related in some way to suspected terrorists, a standard that would do nothing to inhibit a bona fide investigation into terrorist activity. We request that this standard be incorporated into the final conference report in relation to both Section 215 and National Security Letters.
We also request that the report include four-year sunsets for both Section 215 and National Security Letters. These powers are too expansive to go unsupervised, and the last four years have shown us that accountability to the American people and the Congress can only be assured through sunsets.
It is rare that civil libertarians, both left and right, business groups, librarians, gun rights advocates, and Senators and Representatives from both sides of the aisle agree on a national security issue such as this. To ignore nearly unanimous support for reasonable checks and balances only frustrates such bipartisan efforts, and renders months of hearings and inquiries useless. We hope that as this conference progresses that these moderate, but necessary changes are made.