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Amend and Pass the Patriot Act

Amend and Pass the Patriot Act

by Kerby Anderson


            Congress seems unable to re-authorize the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act. Back in June 2005, the House voted 238 to 187 to weaken one of the provisions in the USA PATRIOT Act. Then the Senate has simply decided to keep postponing final consideration by re-authorizing it for a few months at a time.


            A month after the attack on America on September 11, 2001, Congress overwhelmingly passed the USA PATRIOT Act.  Within months, many groups were calling for changes because its sweeping powers would weaken Fourth Amendment protections and equal protection under the law.  Nearly five years later, over 200 communities and a number of states have passed resolutions expressing concerns about the PATRIOT Act and calling for revisions.


The division in Congress is illustrated by the difference of opinion of many of the guests that I have interviewed over the last few months. For example, Frank Gaffney (President of the Center for Security Policy) says, "the Patriot Act is an eminently sensible overhaul of the government's antiquated counter-terror arsenal." He believes that it is "an overhaul that reflects the realization that we cannot hope to fight a 21st century war using 20th century legal instruments."


On the other hand, former congressman Bob Barr believes that Congress should "scale back the delayed notification warrant provision inside the Patriot Act." He says that he understands that these so-called "sneak and peek" warrants are legal and necessary in the battle against terrorism. But he wants to limit the government's usage of them in other areas. He believes they need to be limited "to ensure that they remain the exception, not the norm."


These two men represent different views. And these differences may eventually hurt our ability to fight terrorism, so it is time to focus on what is important.


The USA PATRIOT Act is necessary to fight terrorism in the 21st century. All but the harshest critics would admit that there are important features that needed to be part of our legal structure. Frank Gaffney is right that we needed to overhaul the government's antiquated counter-terror arsenal. Many of these laws were written when you could put a wiretap on a single phone. Now terrorists use cell phones. Obviously, the laws needed updating.


            On the other hand, some provisions in the PATRIOT Act need adjustment.  In the aftermath of September 11, Congress moved quickly.  The House and Senate passed the USA PATRIOT Act so quickly that many members of Congress had not even read the bill.  Yet even a quick reading would not be enough to fully appreciate the impact of the legislation. We now have the advantage of nearly five years of history to evaluate its impact. While the PATRIOT Act has been essential in helping prosecutors take legal action against terrorist operatives and their supporters, there are some provisions that need revising.


            One provision in the Act is called "sneak and peek."  This permits law enforcement to conduct searches without informing the subject in advance.  This provision weakens our constitutional protections.  Law enforcement agencies can search a person's home without informing that homeowner for up to 90 days. Many critics believe that the PATRIOT Act seriously weakens our Fourth Amendment protections against unreasonable searches and seizures.


            Bob Barr expressed his concern about the "possible future misapplication of the PATRIOT Act against pro-life, land rights or Second Amendment activists." He also felt that the PATRIOT Act removed certain limitations which would grant the government "to reach all tangible things (including books, records, papers, documents and other items)."


            Another key provision in the PATRIOT Act deals with the area of "domestic terrorism." Some conservatives believe that political activists and aggressive advocacy groups could be targets of the federal government.


            Congressman Ron Paul says, "The bill as written defines terrorism as acts intended to influence the policy of a government by intimidation or coercion. Under this broad definition, a scuffle at an otherwise peaceful pro-life demonstration might subject attendees to a federal investigation. We have seen abuses of law enforcement authority in the past to harass individuals or organizations with unpopular political views."


            One possible remedy to the PATRIOT Act has been put forward by various members of Congress. The bill is called the Security and Freedom Enhance Act (SAFE Act) and would ensure greater accountability and oversight of governmental powers granted under the PATRIOT Act.


            What is missing from the PATRIOT Act (and provided by the SAFE Act) is stronger standards for judicial review and congressional oversight. For example, the PATRIOT Act contains a catch-all provision that permits the use of "sneak and peek" in nearly all criminal investigations. The SAFE Act permits its use only in those circumstances in which law enforcement believes and a federal judge concurs that without the delayed notification the life or physical safety of an individual will be endangered, someone will flee prosecution, or it could result in the destruction or tampering of evidence.


            The SAFE Act would also address the deadline for notifying a subject of a search.  Under the PATRIOT Act, law enforcement agencies can notify a subject after a "reasonable period" (which can be up to and perhaps even exceed 90 days). The SAFE Act has a strict deadline of seven days with the ability to extend the deadline when a federal judge concurs.


            The Attorney General would be required to report to Congress on a semi-annual basis about the requests that have been made for delayed notification of searches and extensions. The SAFE Act would also sunset the "sneak and peek" power.


            The SAFE Act would implement a higher standard of judicial review concerning records (business, medical, library records). Under the current law, whole databases could be seized by obtaining secret court orders. Liberals and conservatives alike are concerned that contributor lists for right-to-life organizations, environmental organizations, or even gun shops could be obtained by law enforcement agencies.


            Congress needs to amend and pass the USA PATRIOT Act. It can either do it with the existing legislation before them or pass the SAFE Act. Either of these actions provides a wise balance between security and constitutional p