A tenuous balance exists between efforts to safeguard our nation from would-be terrorists and protecting the civil liberties Americans have come to expect. One of the most important tasks for Congress is determining how best to strike that balance given the realities of policy making in a post 9/11 world.
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When the conference report re-authorizing the USA Patriot Act first came out this past November, I joined with five other Senators in a bipartisan effort to voice our view that the report language did not go far enough to safeguard certain civil liberty protections. While the conference report was a tremendous improvement over the current law, it strayed from the Senate-passed bill in some significant areas.
Our group identified four areas of concern where we sought improvement:
1) The standard to obtain a Section 215 order for production of business records should more closely follow Senate-passed language requiring a statement of facts to show the records sought pertain to foreign intelligence information, rather than the presumed relevance standard of the conference report. We also wanted to provide the recipient of a Section 215 order with the ability to challenge the disclosure gag order.
2) We wanted to provide meaningful judicial review of a National Security Letter gag order.
3) We sought to reduce the sunset time frame for those provisions not permanently authorized from seven to four years.
4) We wanted to reduce the time frame under a delayed notification order (sneak and peek) for when the government must notify the target of their search.
Following our initial objections, conferees agreed to reduce the sunset time frame to four years. Still, this single change did not address the remaining concerns we had. However, neither were we willing to let the Patriot Act expire. Our law enforcement and intelligence officials must have the necessary tools to provide for our national security. After two short extensions of the current law, we had a choice to make.
Continuing to insist on movement in all areas, in the face of strong resistance from both the White House and House of Representatives, was likely to only result in a long-term extension of the 2001 Patriot Act language. That would have negated all of the positive changes we had achieved up to that point. Instead, through tough negotiations with the White House, we reached an agreement that takes three important steps toward additional civil liberty protections.
First, we were able to make explicit the right of a Section 215 recipient to challenge the disclosure gag order. For the first time this express right is now available.
Second, an National Security Letter recipient may now consult an attorney without prior disclosure to the FBI of which attorney he will consult with. Security letter rules provide that if the recipient needs to disclose the request for documents to third parties to comply with the request (e.g.: to obtain phone records from the phone company), the recipient must tell the FBI to whom it will disclose the letter. There was concern this might allow the government to play too great a role in determining who a recipient retains for legal counsel.
Third, we included a provision that exempts libraries operating in their traditional function from National Security Letters. A library should not be forced to turn over Internet usage information about its patrons. Neither, however, should a library be a safe haven for terrorists. Toward that end, our language allows the FBI to use a National Security Letter to obtain electronic communications transactional information from a library's Internet service provider, but not from the library itself, unless the library is the Internet service provider.
Make no mistake, these provisions do not fully meet the concerns our group expressed. Nevertheless this is not the last debate we will have on the Patriot Act, nor is it the last piece of legislation we will consider on the subject.
In fact, I was pleased to join with Sen. Arlen Specter, the chairman of the Senate Judiciary Committee, in introducing separate legislation that addressed each of the concerns we raised. We will continue to push forward on these issues, but through the course of this process, we have achieved significant improvements on the Patriot Act.
Lisa Murkowski is the junior U.S. senator from Alaska.
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