Senate Amendments Propose PATRIOT 2, Threaten Civil Liberties

CDT POLICY POST Volume 10, Number 16, October 4, 2004

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology (cdt.org)

(1) Senate Amendments Propose PATRIOT 2, Threaten Civil Liberties

(2) Background: 9/11 Commission Legislation Has Serious Implications for Privacy and Civil Liberties

(3) What Should -- and Should Not -- Be Part of the Intelligence Reform Legislation


(1) Senate Amendments Propose PATRIOT 2, Threaten Civil Liberties

Today, the U.S. Senate begins voting on amendments to legislation to reform the intelligence agencies. Two amendments in particular threaten civil liberties. Both are sponsored by Sen. Jon Kyl (R-AZ).

The Senate intelligence reform legislation would create a Civil Liberties Board in the Executive Branch of the federal government to oversee counter-terrorism programs that have implications for privacy or free speech. The Senate bill also would create Privacy and Civil Liberties Officers in various federal agencies that handle personal information. Together, these two mechanisms could provide important checks on government overreaching.

One of Senator Kyl's amendments would weaken the proposed Civil Liberties Board and would remove the provision creating Privacy and Civil Liberties Officers. The amendment goes against one of the key recommendations of the 9/11 Commission, which is that we need a cross-agency oversight board to protect privacy and civil liberties in an age of greater information sharing and powerful new technologies. CDT believes that the provisions under attack by Sen. Kyl must be part of any legislation to implement the 9/11 Commission's report.

* CDT Letter Opposing the Kyl Amendment to Gut the Civil Liberties Board: http://www.cdt.org/security/patriot2/20041001cdt.pdf

Sen. Kyl (R-AZ) has also introduced an amendment to the Senate bill that would expand the USA PATRIOT Act with a variety of new powers, including giving the FBI so-called "administrative subpoena" authority, meaning that FBI agents could demand paper and electronic documents without judicial approval. A broad coalition of public interest groups from across the political spectrum is opposing the Kyl PATRIOT 2 amendment.

* Right-Left Coalition Letter Opposing Kyl "Patriot 2" Amendment: http://www.cdt.org/security/patriot2/20041001coalition.pdf


(2) Background: 9/11 Commission Legislation Has Serious Implications for Privacy and Civil Liberties

Under the pressure of election year politics, both the House and Senate are considering legislation to reform the nation's intelligence agencies. In the process, privacy and other civil liberties are at risk.

The legislation is intended more or less to implement the recommendations of the commission that studied the intelligence failures associated with the 9/11 attacks. The bipartisan commission issued its best-selling report on July 22, 2004. Immediately, some politicians called for swift adoption of the Commission's recommendations, which include the establishment of a National Intelligence Director and the creation of a government-wide information sharing capability.

The Senate bill has been reported by Committee and is pending on the Senate floor, to be voted on this week. The House will take up its bill on Wednesday, October 6. The Senate bill addresses only issues raised by the 9/11 Commission, but the House bill extends far beyond the scope of the Commission's report.

* 9/11 Commission Report: http://www.9-11commission.gov/report/index.htm
* Senate Bill, S. 2845 http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.02845:
* House Bill, H.R. 10 http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.r.00010:


(3) What Should -- and Should Not -- Be Part of the Intelligence Reform Legislation

The legislation to implement the recommendations of the 9/11 Commission should do just that - and no more. Yet the House bill contains many controversial provisions that are well outside the scope of the Commission's report. Among the far-reaching proposals in the House bill that were not recommended by the 9/11 Commission is the creation of a de facto national identification card based on requiring states to link together all of their drivers license databases. While CDT has long argued that identification documents need to be made more secure, we should not - and need not - create a national ID card.

The House bill does contain a provision creating Privacy and Civil Liberties Officers, but it does not include the Civil Liberties Board that can look at issues that cut across agencies, such as information sharing and watch lists. Lacking from both bill at this point is a clear prohibition against the CIA and defense intelligence agencies engaging in covert operations in the United States.

Information sharing is an important issue that CDT believes is unquestionably an important part of intelligence reform. The Senate bill is intended to promote information sharing and bring it within a framework of transparency, guidelines and accountability. CDT believes that the Senate language should be maintained and clarified to make it clear that the system could be used only for counter-terrorism purposes and that major implementation will not occur until after Congress has had a chance to review the Administration's plan and privacy guidelines.