COLUMNS

PATRIOT Act Conference Report Not Acceptable

This week, Congress considers legislation extending the implementation of the USA PATRIOT Act, a bill passed just six weeks after 9-11 to assist law enforcement personnel pursuing terrorists at home and abroad. Understandably, the debate surrounding the bill is fraught with emotion. All Americans share a sense of outrage at the acts committed on September 11, 2001, and all want to provide law enforcement with the tools necessary to identify and prosecute terrorists.

At issue, however, is whether the proposed changes take appropriate steps to protect the civil liberties of innocent Americans who might otherwise be affected by the elements of this far-reaching law. I believe they do not. And, given the importance of these individual freedoms, I cannot support the bill in its current form.

Ultimately, this debate is about police powers – powers granted by the people to government – and the balance we strike between these forceful tools and the rights of individuals. Historically, we have given significant authority to law enforcement agents to search homes, confiscate business records, detain suspects and the like, because it is in the pubic interest to do so. In bestowing such police powers, however, the Framers of our Constitution were always mindful – as we must be today – to guarantee fundamental protections for individuals, their property, and their liberty.

Provisions written into the Constitution and in laws are designed to protect the innocent, defend against abuse, and ensure the perpetuation of individual liberty no matter who holds the reins of power in the executive, legislative, or judicial branches of government. Thus, evidence must be shown to obtain a search warrant; we have a right to face an accuser; and when wrongly prosecuted, we can appeal our case to court. These are the specific and fundamental rights at issue as we consider extending the PATRIOT Act.

As originally written, the PATRIOT Act created and/or expanded two specific types of subpoena power for federal authorities: the first, a “215 order,” allows the confiscation of any business or library records believed to be relevant to a terrorism investigation; the second, National Security Letters (NSLs) – issued without the approval of a judge – allow the government to compel businesses to provide access to a broad range of financial information, including transaction records and data. In both cases, a “gag order” is automatically imposed, preventing a business or individual from even discussing that the order has been issued. As dramatic as these powers may be, I do not oppose their creation or extension. It is essential, however, that Americans are given the fair opportunity to appeal these orders and their accompanying “gag order” before a judge in a court of law.

The PATRIOT Act fails to provide for meaningful judicial review of NSLs by placing an unreasonable burden on the individual to show that the government acted “in bad faith.” Even in the most egregious of cases, an innocent American would have difficulty meeting such a high threshold. According to published reports, over 30,000 NSLs have been issued and not one has been rejected as “unnecessary.” This fact alone suggests that a system of checks and balances essential to the health of our judicial system has not been properly implemented for these powerful security letters.

Furthermore, the proposed bill provides no judicial review of the automatic, permanent “gag order” that accompanies a “215 order” served on a business or library. Appealing this restriction of free speech would seem to be among the most basic rights due to an American in the face of such government power. Equally important, reviewing “a gag order” in court will in no way impede the ability of law enforcement to pursue investigations or monitor suspected terrorists.

In 1755, Benjamin Franklin observed that, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Our belief in the primacy of individual liberty makes America unique and keeps us strong. This principle is eternal, and should be applied always consistently during times of prosperity and want, and times of war and peace.

Establishing reasonable standards of evidence and allowing judicial review of subpoenas and “gag orders” does not threaten anyone’s security; but, these allowances will ensure that civil liberties are protected and maintained today and in the future. It may not be a politically popular stand, but it is one that I believe our country’s Founders would very much understand.