A Senate Judiciary Committee hearing tomorrow morning will commence a new round of discussions about the Patriot Act. I welcome that hearing, because the American people deserve an honest, responsible and fair discussion to ensure that we are indeed fulfilling our dual responsibilities to protect national security and civil liberties alike. Unfortunately, the debate about the Patriot Act has not always met that standard. Last fall, just weeks before the presidential election, we even witnessed false reports in newspapers across the country that a federal court had struck down parts of the act as unconstitutional. False reports and scare tactics serve no legitimate cause and greatly disserve the American people.
The war on terrorism must be fought aggressively but consistently with the protection of civil rights and civil liberties. Whenever real civil-liberties problems do arise, we must learn about them right away, so that we can fix them swiftly.
It is for precisely this reason that I have long been concerned about false allegations of civil-rights deprivations. Every false allegation undermines every true one, and that hurts us all.
After all, scaring people about false civil-rights deprivations unnecessarily divides our nation and makes no one safer. If anything, false claims about civil liberties actually make it harder to monitor real civil liberties issues in the future — for the same reason that eventually no one listened to the fabled little boy who kept “crying wolf.” After several weeks of negotiation, Congress in 2001 enacted the Patriot Act by overwhelming bipartisan margins — 98-1 in the Senate and 357-66 in the House. At the time, senators on both sides of the aisle agreed that the legislation had struck a careful and wise balance between national security and civil liberties.
The record continues to be strong to this day. As Sen. Dianne Feinstein, California Democrat, noted at a Senate Judiciary Committee oversight hearing during the last Congress, “I have never had a single abuse of the PATRIOT Act reported to me. My staff emailed the ACLU and asked them for instances of actual abuses. They emailed back and said they had none.”
The ACLU did allege in a press release in September that a federal court had struck down parts of the Patriot Act — calling the decision “a landmark victory against the Ashcroft Justice Department.” Newspapers across the country repeated that message. But as legal experts immediately discovered, there were two important problems with the allegation: They were attacking the wrong person and the wrong law.
In fact, the court had actually struck down a law authored by Sen. Patrick Leahy, Vermont Democrat, during the 1980s. That statute balanced the national interest in protecting electronic communications privacy against the legitimate needs of national security, by establishing a procedure for obtaining electroniccommunications records in certain national-security investigations through the use of so-called “national security letters.” The Patriot Act amended the law to make clear that such letters could be issued in terrorism investigations as well.
So the statute in question was written by Mr. Leahy, not John Ashcroft. And it was the Electronic Communications Privacy Act of 1986, not the Patriot Act in 2001. Indeed, the Patriot Act did not change a single word of any provision attacked by that court.
What’s more, in 1986, the ACLU endorsed the Electronic Communications Privacy Act. And shortly after that law was approved by the Senate on a voice vote and the House by unanimous consent, the chief legislative counsel of the ACLU called it a “significant advancement of privacy rights of citizens in the age of new communications technology.” None of this stopped the ACLU in 2004, however, from charging that the court’s ruling was “the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.”
The ACLU has since backed down and admitted that it had attacked the wrong law. As ACLU attorney Jameel Jaffer eventually conceded, “the provisions that we challenged and that the court objected to were in the statute before the Patriot Act was passed. We could have raised the same objections before the power was expanded.” Nevertheless, it hurts all of us whenever an allegation about civil liberties is discredited ? because it makes it that much easier to ignore legitimate civil-liberties problems that may arise in the future.
It’s also worth noting that the primary controversy in the litigation — whether judicial review is available to scrutinize the issuance of national security letters — was not actually disputed by the government. To the contrary, the Justice Department agreed that there should be judicial review. The court simply concluded that the 1986 law was not drafted with sufficient clarity to authorize such review.
This week I will introduce legislation to cure this technical defect and to amend the Electronic Communications Privacy Act to make explicit the availability of judicial review to examine national security letters. I hope that this legislation will be enacted in the same bipartisan spirit that put both the Electronic Communications Privacy Act and the Patriot Act on the books. And I hope that future discussions about the war on terrorism, civil liberties, and the Patriot Act will be honest, responsible and fair.
John Cornyn is a Republican senator from Texas and a member of the Judiciary Committee. He is a former state supreme court justice and attorney general.