Letter to Congress calling for vote against the Patriot Act Conference Report

December 2005

The Chicago Council of Lawyers' Civil Liberties Committee calls on the Illinois members of the United States Senate and House of Representatives to vote against the Patriot Act Conference Report. Senator Durbin has already announced his opposition to this unsatisfactory attempt to reform the deeply flawed Patriot Act.

The Conference Report should be opposed because it does little to address the threat posed by the Patriot Act's surveillance provisions to the people's civil liberties guaranteed by the Constitution, especially the First and Fourth Amendments.

Through these constitutional amendments in particular, the Framers of our Constitution sought to ensure that the people would be free to participate in political debate without fear of government reprisal and would be free from government intrusions into their persons, houses, papers, and effects unless the government could show that the individual was engaged in some specific wrongdoing. The Framers further sought to check the President's power by requiring that his agents obtain a warrant from an independent judge prior to a search. The right of the aggrieved individual to challenge the government's conduct in a court of law constituted yet another check on the government's search and surveillance powers.

The searches authorized by the Patriot Act and Conference Report, especially under the Patriot Act's changes to the Foreign Intelligence Surveillance Act, the Act's so-called library records provision, and the Act's liberalization of the scope of "national security" letters, defy these constitutional protections.

The Act abandons the constitutional requirement that intrusive searches be premised on individualized suspicion. Under some of the Act's provisions, the government may gain access to a multitude of information about an individual with a bare declaration that the information is related to a terror investigation. The government need not show that the targeted individual is personally involved in any wrongdoing. Forsaking the individualized suspicion requirement makes it much more likely that information concerning people who have no relation whatsoever to an investigation will be collected by the government. For example, it has been reported that the government requested information about all users of a library's computer, information that identified the library patrons, the websites they visited, the email accounts they used, and the library books they borrowed.

The Act also dilutes the check on Executive Branch searches provided by an independent judiciary. Under the library records provision, judges are essentially ordered to comply with the government's request for information and have virtually no discretion to deny a request. Judges are cut out of the process altogether when the government utilizes a national security letter, which requires no judicial approval prior to a search.

The Act also effectively prohibits affected individuals from challenging the searches because they are never informed of the government's actions. Consequently, the Act frustrates a fundamental check on the power of government: the individual's right to challenge objectionable government conduct in the courts.

In sum, the Conference Report fails to ensure that searches authorized by the Patriot Act comport with the Constitution. The Report fails to ensure that Patriot Act searches are: (1) based on individualized suspicion of wrongdoing, (2) subject to meaningful judicial oversight, and (3) susceptible to challenge at some point in time by the aggrieved individual in court. The fact that the Report calls for three sections of the Act to be reviewed again in four years under another round of sunset provisions should not make it easier on any Member of Congress to approve the Report. Strict construction of the Constitution should require that its tenets be scrupulously followed at all times. Straying from the Constitution endangers the Framer's vision of both the limited power of the federal government and the guaranteed rights of the people.

History warns of a cycle that develops in times of national agitation and the threat it poses to civil liberties. The cycle begins with a national trauma, followed by the government's desire for broader powers to combat the enemy. Over time, the government applies its new powers outside the scope of the original danger and infringes upon the lawful First Amendment activities of those the government deems subversive. As the Church Committee's Report on Intelligence Activities and the Rights of Americans noted 30 years ago:

We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of totalitarian regimes. We have seen a constant pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as "vacuum cleaners", sweeping in information about lawful activities of American citizens.

The tendency of intelligence activities to expend beyond their initial scope is a theme which runs through every aspect of our investigative findings. Intelligence collection programs naturally generate ever-increasing demands for new data. And once intelligence has been collected, there are strong pressures to use it against the target.

The Conference Report does far too little to prevent unwarranted government intrusion into the lives of far too many Americans. As our history demonstrates, this is a recipe for the serious misuse of the federal government's power.

The Conference Report should not be approved because it does not adequately address the serious threats that the Patriot Act poses to our Constitutionally guaranteed rights and freedoms. The Chicago Council of Lawyers' Civil Liberties Committee strongly urges a "No" vote on the Conference Report.

Gordon Waldron
Chair, Civil Liberties Committee
Chicago Council of Lawyers

Sean Collins-Stapleton
Vice President
Chicago Council of Lawyers