Senate Committee Hears Patriot Act Critics

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On Tuesday, May 10, the Senate Committee on the Judiciary (SCJ) continued its oversight hearings on the USA Patriot Act and heard testimony from a number of the act's critics. Among those testifying before the committee were Senators Richard Durbin (D-IL) and Larry Craig (R-ID), sponsors of the Security and Freedom Enhancement Act (SAFE) of 2005.

In his opening remarks, Craig stressed that it is crucial that the committee not only review how the Patriot Act has been used, but also whether the act leaves open the door for abuses in the future. "This committee should ask [the question] as to how to prevent the future abuses of these powers," he said. "The folks back home find it awfully hard to just sit back and trust the government to do the right thing without the adequate checks and balances to prevent harm in the case that something goes wrong."

Said Senator Durbin, "People want Congress to strike a balance, to protect civil liberties, but give government the power it needs to fight the war on terrorism." He pointed out that the 9/11 Commission stressed that when the government seeks to expand its power, "the burden of proof is on the government to demonstrate that the power is needed."

During the hearing, committee members Dianne Feinstein (D-CA), John Cornyn (R-TX), and Jon Kyl (R-AZ) stressed that there were no known abuses of the expanded Patriot Act powers. Cornyn contended, "People condemn [the Patriot Act] entirely ... on emotion and on spin.... The best teacher is experience and the Patriot Act has held up well in experience in terms of providing security, but not unduly jeopardizing our liberty. We should make our decision based on facts and experience."

One of the more intense exchanges of the day occurred between Senator Kyl and Senators Durbin and Craig over the exact interpretation of Section 215 of the Patriot Act. Kyl insisted the statute gave the recipients of a 215 order the authority to challenge it, and he dismissed out-of-hand a point made by Durbin that the potential exists that a law enforcement request for library records under Section 215 could inadvertently cast an American citizen into a net of suspicion because of the type of book he or she checked out. "That's a red herring," Kyle scoffed.

"I don't think it's a red herring," said Craig, who suggested that Section 215 could open the door for abuses by a "rogue agent," who, for example, might decide to check and see if anyone took out a book on bomb-making at a particular library.

In his opening remarks, SCJ committee member Russell Feingold (D-WI) stressed, "Our responsibility is to make sure future abuses do not occur.... Do we lay down the hammer and say nothing bad has happened [thus far], so let's renew? Apparently, Section 215 has not been used, but many times the records were obtained from librarians who volunteered them." And in response to the exchange between Kyle and Durbin, he added: "If there is an ability to challenge under 215, I cannot find it."

Others testifying in favor of amending Section 215 and other sunsetting provisions of the USA Patriot Act included former U.S. House representative Bob Barr, the current chairman of the Patriots to Restore Checks and Balances; David Cole, professor of law at the Georgetown University Law Center; James X. Dempsey, executive director of the Center for Democracy and Technology; and Suzanne E. Spaulding, managing director of the Harbour Group, LLC.

Patriot Act proponents testifying before SCJ were Daniel P. Collins, a partner at Munger, Tolles & Olsen LLP, and Andrew C. McCarthy, an attorney and senior fellow at the Foundation for the Defense of Democracies, a Washington, D.C.-based "non-partisan, non-profit policy institute dedicated to defeating terrorism and promoting freedom."

In his statement, Barr called on Congress to "improve the Patriot Act by carefully inserting modest checks against abuse. In particular, I urge the members of the committee to support the bi-partisan SAFE.... While it would retain every expansion of law enforcement and intelligence authority in the Patriot Act, the SAFE Act would incorporate modest -- but essential -- new safeguards against abuse."

During questioning from SCJ members, Harbour Group's Spaulding said of Section 215, "At a minimum, we ought to consider a higher standard for records that implicate First Amendment activity and probable cause might be the appropriate standard there; and a clarification that it applies only to business records. Now it applies to any tangible thing held by anyone."

Meanwhile, in his statement, Foundation for the Defense of Democracies' McCarthy defended Section 215. "None of the Patriot Act's enhancements of the government's investigative arsenal has been more assiduously libeled than Section 215," he said. "Indeed, in the public mind, it has become the 'library records' provision notwithstanding that libraries are nowhere mentioned. While there are points of legitimate concern, most of the controversy is a tempest in a teapot. Section 215 is a good law." --David Grogan

(For more about efforts to amend the USA Patriot Act, go to