ACLU Report Calls for Oversight, Overhaul of Patriot Act

Reclaiming Patriotism: A Call to Reconsider the Patriot Act [1] was published by the ACLU on March 11, 2009. It urges Congress and the public to take advantage of the opportunity created by the expiration of three surveillance provisions in December 2009 to "thoroughly evaluate all Patriot Act authorities –as well as any other post 9/11 domestic intelligence programs – and to rescind, repeal or modify provisions that are unused, ineffective or prone to abuse." The report cites surveillance programs and the overbroad definition of material support of terrorism, which inhibits legitimate charitable work, as primary provisions for review and revision. It also makes specific recommendations for reform.

Secrecy and Lack of Congressional Oversight [2]
Material Support Provisions Limit Legitimate Charities [3]
Surveillance Harms First Amendment Rights, Privacy [4]
Recommendations [5]

Secrecy and Lack of Congressional Oversight

The report says Congressional review is necessary because "More than seven years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists." It notes that the Patriot Act was passed without debate only 45 days after the 9/11 attacks, and was not focused on specific gaps that made it difficult for intelligence authorities to protect the public. Instead, overly vague definitions combine with expanded powers to create threats to fundamental liberties. The report notes, "More exacting standards are necessary in national security cases because history has repeatedly shown that government leaders too easily mistake threats to their political security for threats to the national security."

When Congress reviewed expiring provisions in 2005 "there was very little information in the public record for Congress to evaluate." When it passed amendments in March 2006, the report says the "Excessive secrecy surrounding the government’s use of these authorities, enforced through unconstitutional gag orders, prevented any meaningful evaluation of the Patriot Act. Even without adequate supporting justification, in March 2006 Congress passed the USA Patriot Act Improvement and Reauthorization Act, making fourteen of the sixteen expiring provisions permanent."

The report says that "raw numbers available through government reports reflect a rapidly increasing level of surveillance." For example, National Security Letter requests under the relaxed standards in Section 505 of the Patriot Act went from 8,500 in 2000 to 49,425 in 2006. [p. 11-12] This is a startling 481 percent increase. The report goes on to show that the dramatic increase in information collection has not resulted in more international terrorism prosecutions. [p. 13] In fact, the Department of Justice declined to pursue 87 percent of cases referred by the Federal Bureau of Investigation (FBI).

New Congressional review of the Patriot Act is also needed because "several courts have found parts of the Patriot Act unconstitutional." These cases, described in pages 21-28 of the report, include challenges to the definition of material support, gag orders on people served with National Security Letters, and exclusion of foreign visitors based on their ideological orientation.

 Material Support Provisions Limit Legitimate Charities

The report says that "Laws prohibiting material support for terrorism, which were expanded by the Patriot Act, are in desperate need of re –evaluation and reform. Intended as a mechanism to starve terrorist organizations of resources, these statues instead undermine legitimate humanitarian efforts and perpetuate the perception that U.S. counterterrorism policies are unjust."

Prior to 9/11 material support was defined in the Antiterrorism and Effective Death Penalty Act as knowingly providing resources in preparation for in carrying out a terrorist attack (18 USCA 2339A) or knowingly providing resources to any group designated as a Foreign Terrorist Organization (FTO) by the Secretary of State. (18 USCA 2339B). The report notes that the International Emergency Economic Powers Act also contains a prohibition on providing material support. The Patriot Act expanded these definitions to include "expert advice or assistance" and the only exemptions are for medicine and religious materials. As a result, medical and other services are prohibited.

In practice the definition of material support "effectively prevents humanitarian organizations from providing needed relief in many parts of the world where designated groups control schools, orphanages, medical clinics, hospitals and refugee camps." This is illustrated in a summary of one volunteer aid worker's experiences in Sri Lanka after the tsunami of 2004. [p. 23-24]

The report describes the progress of the legal challenge to the definition of material support in Humanitarian Law Project v. Mukasey, where the plaintiffs wished to provide human rights and conflict resolution training to designated terrorist groups in Sri Lanka and Kurdistan, but were barred by the material support definition. The report notes that the "U.S. Court of Appeals for the Ninth Circuit found the terms 'training' and 'service' and part of the definition of 'expert advice and assistance' unconstitutionally vague under the Fifth Amendment." The government appealed, and in January 2009 the court upheld this ruling [6].

Congress can cure the constitutional and humanitarian problems with a different material support definition. The ACLU recommendations are as follows: 

• Amend the material support statutes to require specific intent to further an organization’s unlawful activities before imposing criminal liability.
• Remove overbroad and impermissibly vague language, such as “training,” “service” and “expert advice and assistance,” from the definition of material support.
• Establish an explicit duress exemption to remove obstacles for genuine refugees and asylum-seekers to enter and/or remain in the United States.
• Provide notice, due process and meaningful review requirements in the designation process, and permit defendants charged with material support to challenge the underlying designation in their criminal cases.
   

Surveillance Harms First Amendment Rights, Privacy

The report provides clear and thorough explanations of how the Patriot Act has contributed to dramatic expansion of government surveillance and information gathering about people who are not the target of criminal investigations. Surveillance issues it recommends for review by Congress are: 

• National Security Letters: Section 505 of the Patriot Act expanded the power of the FBI "to obtain sensitive personal information such as financial records, credit reports, telephone and email communications data and Internet searches" on anyone it deems "relevant" to a counterterrorism investigation, without a warrant. The report details two Inspector General Reports that "confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities." [p. 16-17]
• Gag Orders on Recipients of National Security Letters: The Patriot Act prohibited librarians, telecommunications companies and others who received National Security Letters requiring them to hand over information to the FBI from divulging the request. Three different courts have found such gag orders to be unconstitutional. [p. 21-22]
• Warrantless wiretapping: Section 218 of the Patriot Act expanded wiretapping powers under the Foreign Intelligence Surveillance Act (FISA) to allow warrantless surveillance when the government shows a secret court that gathering foreign intelligence is only a significant purpose of its effort. Prior to that the government had to show such an investigation was its primary purpose. The result is that no showing of probable cause is required, violating the Fourth Amendment's protections against unreasonable search and seizure. 

The report provides an excellent explanation of how the framers of the Constitution and Bill of Rights saw Fourth Amendment protections against search and seizure as fundamental to protecting First Amendment Rights of free speech, association and petitioning the government for redress of grievances." It says:

• "The Fourth Amendment mandates prior judicial review and permits warrants to be issued only upon probable cause. The nation’s founders saw these procedural requirements as the necessary remedies to the arbitrary and unreasonable assaults on free expression exemplified by King George’s abuse of general warrants. Stifling dissent does not enhance security."
• "The Supreme Court has long acknowledged the important interplay between First Amendment and Fourth Amendment freedoms. As it reflected in 1965, “what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.”"

Recommendations

In its Conclusion the report notes that "There have been many significant changes to our national security laws over the past seven years, and addressing the excesses of the Patriot Act without examining the larger surveillance picture may not be enough to rein in an out-of-control intelligence-gathering regime. Fundamentally, Congress must recognize that overbroad, ineffective or abusive surveillance programs are counterproductive to long-term government interests because they violate constitutional standards and undermine public confidence and support of U.S. anti-terrorism programs. Congress should begin vigorous and comprehensive oversight hearings."