THE BLOG

A Patriot's PATRIOT Act

03/18/2010 05:12 am ET | Updated May 25, 2011

My Judiciary colleagues Jerrold Nadler, and Robert C. Scott joined me in penning this piece.

In 1928, the Supreme Court heard its first challenge to a secret government wiretap.  The court upheld the warrantless surveillance in that case, but Justice Brandeis dissented.   While the wiretap evidence was important to a federal prosecution, he warned that "experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent."  Brandeis' view was vindicated forty years later, when the Supreme Court overruled that decision and held that government wiretaps require warrants and probable cause. 

The House Judiciary Committee will take up legislation tomorrow to revise a number of provisions of the USA PATRIOT Act, and we would all do well to heed Justice Brandeis.  Everyone agrees on the critical importance of fighting terrorism and crime.  And no one should question the motives of the law enforcement, intelligence, and military services who are on the front lines of this struggle.  But good intentions are not enough to preserve our liberty, and the current PATRIOT Act simply grants too much unchecked authority to our government.  In our view, it should be tightened up to ensure our government gets the information it needs, and keeps out of the information it doesn't.

For example, under current law, the government can get a secret intelligence court order requiring any person or business in the United States to turn over any information considered "relevant" to a foreign terrorism investigation.  The information does not have to involve a foreign agent or terrorism suspect, it simply has to be useful to investigators.  If a terrorism suspect visited a bar or restaurant -- or a bookstore -- the government might consider the credit card records of every other person who visited the establishment that night to be "relevant."  The government's showing need not meet any meaningful evidentiary threshold - a mere statement of facts giving rise to the government's belief that the information is relevant is enough.

Even more troubling are PATRIOT Act provisions allowing the government to obtain information on US citizens without any court review whatsoever by issuing so-called "National Security Letters."  These "NSLs" allow the FBI to compel banks, phone companies, internet service providers and others to produce customer records, while forbidding the businesses from telling anyone that their records have been searched.  Once again, under current law, the government may exercise this power if it believes records are relevant to an investigation, even when the records do not directly relate to any terrorist or foreign agent.

As legislators sworn to defend the Constitution of the United States, we are obliged to craft a law that preserves both our national security and our national values.  The old Franklin saw that those who would trade liberty for security deserve neither may be clichéd, but that is because it is true. 

That is why we have introduced a new PATRIOT Act bill that ensures our government has the power it needs to fight terrorism and defend our nation, and at the same time better protects the constitutional rights and freedoms that Americans cherish.  Our bill would tighten the standards for NSLs and for secret court orders compromising the records of US citizens, and includes a range of other protections to ensure these powers are available where needed, but cannot be abused.  It would also require enhanced oversight and reporting to Congress, so that any misuse of these powers can be uncovered and fixed.

When he spoke before our founding documents at the National Archives last May, President Obama echoed Justice Brandies:   "As a citizen, I know that we must never, ever, turn our back on [the Constitution's] enduring principles for expedience sake."  He was exactly right, and we urge the President and all members of Congress to take that principle to heart as we work together to craft a revised PATRIOT Act of which all patriots can be proud.