July 2005 Letter in Support of SAFE Act

July 12, 2005

The Honorable Arlen Specter
Chairman
United States Senate Judiciary Committee
Washington, DC 20010

Dear Chairman Specter:

We, the undersigned, write in strong support of S. 737, the Security and Freedom Enhancement (SAFE) Act of 2005. The legislation, designed to modestly reform the 2001 USA Patriot Act, provides crucial safeguards against abuse in some of the Patriot Act's most expansive and unchecked provisions.

While we want the federal government to do all it can to protect our nation from future terrorist attacks, we also do not wish our basic constitutional freedoms to be eroded by the increasing size, power and intrusive authority of the federal government.

We applaud primary sponsors Senators Larry Craig (R-ID), Richard Durbin (D-IL), John Sununu (R-NH) and Russell Feingold (D-WI) for their commitment to the Constitution. Their support highlights the fact that fighting for both our nation's security and our freedom transcends ideology or partisanship. In announcing the introduction of the SAFE Act earlier this year, Senator Craig stated, "It is possible to fight terrorism without eroding the Constitution and the rights of Americans, and our bill is designed to restore that critical balance in the aggressive enforcement of our laws. However, before the Patriot Act is reauthorized later this year, a few small, but important, changes must be made."

As mentioned, the SAFE Act takes a surgical view of Patriot Act reform. For instance, rather than doing away with the government's ability to conduct searches under section 213 without notifying the target, it ensures that notice will only be delayed if it endangers evidence or a person's safety, or if it could incite flight from prosecution or witness tampering.

The SAFE Act also requires individual suspicion for records searches, with an explicit right to challenge the order and the secrecy requirement. While we seek this important safeguard, we are alarmed that the Senate Intelligence Committee recently adopted a proposal that would grant the FBI even more power to seize records without appropriate checks and balances. This proposal to expand so-called "administrative subpoena" powers would allow the FBI to write its own search and disclosure orders with no judicial approval. Attorney General Gonzales has repeatedly emphasized that the prior judicial approval required for Section 215 orders is a safeguard against abuse. Yet, the Attorney General's assurances would be meaningless if the FBI could issue disclosure orders with no judicial approval.

Moreover, under current law, the FBI already has far-reaching compulsory powers to obtain any relevant information when it is investigating terrorism, under both its criminal and intelligence authorities. The government has made no showing that these powers are insufficient. We urge you to reject such an unjustified and largely unaccountable new
power.

Other provisions of the SAFE Act include sensible privacy safeguards for roving wiretaps in foreign intelligence cases that are already required in criminal cases, a definition of domestic terrorism geared to serious crime, not protest groups, and further public reporting on the government's use of foreign intelligence surveillance powers.

The Patriot Act was passed in haste a mere 45 days after the 9/11 attacks and with only cursory debate. As Senator Durbin said during a recent Patriot Act oversight hearing, "We passed the Patriot Act at a moment when our nation was gripped with high emotion and fear. History tells us that we don't do our best work under those circumstances."

Now, three and half years after those attacks, Congress has a chance to take a sober second look at the bill. Accordingly, we strongly urge passage of the SAFE Act.

Sincerely,

American Association of Physicians and Surgeons
American Bookseller Association
American Civil Liberties Union
American Conservative Union
American Library Association
American Policy Center
Bill of Rights Defense Committee
Center for American Progress
Center for Democracy and Technology
Center for National Security Studies
Fairfax County Privacy Council
Friends Committee on National Legislation
Gun Owners of America
League of Women Voters of the U.S.
Liberty Coalition
National Association of Criminal Defense Lawyers
National Association of Muslim Lawyers
National Lawyers Guild/National Office
PEN American Center
People for the American Way
Republican Liberty Caucus
The Rutherford Institute