- The Washington Times - Friday, October 2, 2009

ANALYSIS/OPINION:

It has been nearly eight years since the USA Patriot Act was signed into law. Written and adopted hastily in response to the tragic events of Sept. 11, 2001, few citizens, members of Congress, or administration officials understood just how far the authorities bestowed by the Patriot Act extended or how they might be used.

In the immediate aftermath of the attacks, an atmosphere of fear surrounded Washington. There was tremendous pressure to do everything possible to prevent another terrorist attack. Then, when Congress reconsidered numerous provisions of the Patriot Act in 2005-06, there was little evidence in the public record about how the government was using these powers.

Fortunately, inspector general audits ordered during the reauthorization have since revealed the extent to which our individual rights and privacy were sacrificed and the excessive authorities it conferred on the government.

At the end of this calendar year, three provisions of the Patriot Act will expire unless reauthorized by Congress. Now that we have clear evidence of abuse, Congress needs to take a hard look at the authorities granted by the act to ensure that we are only providing the government with the means needed to protect the American people.

All three expiring provisions, the “business/library records,” “roving wiretaps” and “lone wolf,” should be allowed to sunset unless significant reforms are made to protect the rights of Americans. That is why we have joined with the Constitution Project’s broad and bipartisan group of former judges, members of Congress, executive branch officials, and others to urge Congress to only reauthorize these sunsetting provisions if they are amended to provide more robust protections for constitutional rights and civil liberties. Whenever we grant powers to the executive branch, we must incorporate the proper safeguards to protect individual rights and ensure oversight.

For example, the “business or library records” provision allows the FBI to collect personal information from businesses, notably including libraries, under the guise of counterterrorism, without having to prove that the information sought relates to a person being investigated. The Patriot Act expanded the types of information that can be demanded, as well as the entities that can be compelled to turn it over.

Moreover, it includes a limitless gag order, allowing the government to block the business or library from disclosing the fact that it was forced to turn over records to the federal government. Not only are the privacy rights of innocent Americans being neglected, but the free speech rights of business people and librarians are also diminished.

Just last week, we both testified before Congress at a hearing on reauthorization and reform of the Patriot Act. As the Dec. 31 sunset approaches, this ongoing discussion should be viewed as an opportunity - not only to fix oversights of the past, but also to reform other problematic Patriot Act authorities - most important, reining in the use of national security letters (NSLs).

The NSL authority allows the FBI to seek information from a broad class of communication providers and financial institutions without any court approval. The Patriot Act eliminated the requirement that the information must concern a foreign power or agent, as well as the statutory provision mandating that agents have a factual basis for seeking records. Now, the FBI simply needs to request the information and assert that it is relevant to a counterterrorism investigation. Also, like the “library records” provision, the government may include a gag order to prevent recipients from disclosing their receipt of an NSL.

Unsurprisingly, audits by the Justice Department’s inspector general in 2007 and 2008 revealed that the FBI failed to comply with the minimal rules still in place to govern NSL issuance, even under the Patriot Act’s expanded scope. Without any checks on their authority, the FBI used NSLs excessively and improperly, and this power remains ripe for abuse.

The best decisions are not made in haste or in the face of fear. After the Sept. 11 terrorist attacks eight years ago, Congress, pressed hard by the administration, rushed to pass legislation without full consideration. Congress missed the first chance for reform when various Patriot Act provisions were up for renewal four years ago because unconstitutional gag orders hid the evidence of abuse. Now, it is the responsibility of those in Congress to consider seriously all we have learned about the Patriot Act, and either fix or abandon it.

The Constitution provides safeguards against the abuse of individual rights and liberties. Americans allowed those safeguards to be lowered. It is now time to restore them to the height intended by the Founders of our nation.

Thomas B. Evans Jr. is a former Republican member of the House of Representatives from Delaware; he is now co-chairman of the Republican National Committee. Michael German was a special agent with the FBI from 1988 to 2004; he is now policy counsel with the American Civil Liberties Union.

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