Statement on the Conference Report to H.R. 3199, The USA PATRIOT Improvement and Reauthorization Act
With key provisions of the PATRIOT Act set to expire at the end of this month, we had hoped that House and Senate negotiators would reach agreement on a reauthorization bill that could command strong bipartisan support in Congress and enjoy the confidence of the American people.
Unfortunately, the conference agreement announced yesterday does neither. It again presents our nation with a false choice—between defending our freedoms and ensuring that our government has the tools it needs to protect us from harm.
While the bill includes some valuable measures to improve congressional oversight of domestic surveillance activities, it fails to make needed improvements to the standards that determine when such surveillance can lawfully be conducted.
The bipartisan Senate bill provided a reasonable standard that would have required the government to show some connection between the records it is seeking under section 215 of the Patriot Act, the so-called “library provision,” and an individual suspected of being a terrorist or spy. The conferees settled for a weaker standard that allows the government to obtain the records of any person as long as they are “relevant” to a terrorism investigation. While we commend the conferees for agreeing to a four-year “sunset” of this provision, such a standard will do little do allay public concerns.
Even more troubling was the failure of the conferees to sharpen the standard for the use of National Security Letters (NSLs) under section 505 of the Patriot Act, which authorizes the FBI to conduct secret, warrantless searches of any records the FBI deems relevant to a national security investigation.
This is particularly perplexing given recent revelations that the government is generating NSLs at a rate of more than 30,000 a year—a hundred-fold increase since the enactment of the Patriot Act. Meanwhile, the judicially-supervised process under section 215 has reportedly been used in only a handful of cases.
Yet the conferees not only failed to reform the standards for the use of NSLs, but failed even to sunset the provision. Now that we know about the huge growth in the use of NSLs under the Patriot Act, it makes no sense to sunset the seldom-used section 215 while leaving section 505 in place in perpetuity.
It is not too late for Congress to get this right. We applaud the senators and representatives of both parties who have announced their opposition to this flawed legislation, and who have urged the conferees to return to the negotiating table. If they cannot reach agreement by the end of the year, Congress should enact a short-term extension of the expiring provisions until a satisfactory solution can be achieved.
Mark D. Agrast is a Senior Fellow and Peter P. Swire is a Visiting Senior Fellow at the Center for American Progress.