RECLAIMING PATRIOTISM - A Call to Reconsider the Patriot Act

March 2009:

Executive Summary:

More than seven years after its implementation, there is little evidence to demonstrate that the Patriot Act has made America more secure from terrorists. But there are many unfortunate examples that the government abused these authorities in ways that both violated the rights of innocent people and squandered precious security resources.Three Patriot Act-related surveillance provisions will expire in December 2009, which will give the 111th Congress an opportunity to review and 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 framers of the Constitution recognized that giving the government unchecked authority to pry into our private lives risked more than just individual property rights. These patriots understood from their own experience that political rights could not be secured without procedural protections. 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 framers created our constitutional system of checks and balances to curb government abuse and, ultimately, to make the government more responsive to the needs of the people – in whom all government power resides. Limiting the government’s power to intrude into private affairs, and checking that power with independent oversight, reduces the error and abuse that conspire to undermine public confidence. As the original patriots knew, adherence to the concepts set forth in the Constitution and the Bill of Rights makes our government stronger, not weaker.

The Patriot Act vastly – and unconstitutionally – expanded the government’s authority to pry into people’s private lives with little or no evidence of wrongdoing. Unfortunately, when the expiring provisions came up for review in 2005 there was very little in the public record for Congress to evaluate. 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.

Little is known about the government’s use of many of its authorities under the Patriot Act, but raw numbers available through government reports reflect a rapidly increasing level of surveillance. The statistics show skyrocketing numbers of Foreign Intelligence Surveillance Court orders, National Security Letter (NSL) requests and Suspicious Activity Reports while terrorism prosecution numbers are down and declinations to prosecute FBI international terrorism investigations have increased. Moreover, Department of Justice Inspector General reports (mandated as part of the Patriot Act reauthorization) revealed the government’s widespread misuse of NSL and section 215 authorities. Also, several courts have found parts of the Patriot Act unconstitutional, including the NSL gag provisions, enhancements to the material support and ideological exclusion statutes, and Section 218 of the Patriot Act, which lowered the standard for obtaining an individualized Foreign Intelligence surveillance Act (FISA) warrant.

This report identifies the Patriot Act provisions that require intensive oversight and modification to prevent abuse. It also contains specific legislative recommendations for reforming the NSL, FISA, material support and ideological exclusion statutes and section 215 of the Patriot Act:

For the rest of the report: by THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and the laws of the United States.