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Letter to Senator Schumer Urging NY Congress Members To Support The SAFE Act

June 30, 2005 Office of Senator Charles E. Schumer 313 Hart Senate Building Washington, DC 20510 Dear Senator Schumer: We write to express grave concern regarding efforts by some in the Congress to extend and expand the USA PATRIOT Act (“Patriot Act”). We seek your assurance that you will vote against legislation to renew those sections of the Patriot Act that are scheduled to expire this year. We also request that you become a co-sponsor of the SAFE Act (S.737), and work towards the re-introduction of the Civil Liberties Restoration Act in the Senate. These legislative proposals are intended to restore constitutional protections of speech, expression, privacy, religious freedom and due process that have been compromised unduly by provisions of the Patriot Act and by various non-legislative antiterrorism initiatives. It is our understanding that a proposal to repeal the sunset provisions of the Patriot Act may be voted on in the Judiciary Committee as early as the week of July 11th. We therefore request, and would greatly appreciate, a response from you by next week regarding your position on the legislation referred to above. There is deep and widespread concern among Americans that the precipitous and sweeping expansion of state police powers that has occurred in recent years – through legislation, executive orders, and through rules adopted by the F.B.I. and other federal agencies – has undermined fundamental rights and liberties promised in the Constitution and the Bill of Rights. This concern is well documented. A nationwide coalition has formed to oppose expansion of the Patriot Act. Led by Bob Barr, former Republican Congressman from Georgia, this diverse coalition includes the ACLU, the American Conservative Union, the Free Congress Foundation, and Gun Owners of America. Local governments in nearly 400 cities and towns throughout the United States have adopted resolutions calling upon federal, state and local officials to oppose the provisions in the Patriot Act that undermine constitutional rights and liberties – and to respect, uphold and defend individual rights and liberties as the government takes measures to secure the country against acts of terrorism. State legislatures in seven states, including Colorado and Maine, have passed such resolutions. New Yorkers in the tens of thousands, representing counties throughout the state, have joined this national movement. The objective of this effort is to ensure that in seeking to protect the security of our nation, we do not surrender the principles of individual liberty upon which our democracy is founded. Local governments in more than two dozen New York cities, towns and villages – including Albany, Westchester County, Bethlehem, Elmira, Syracuse, and New York City — have passed resolutions opposing those provisions of the Patriot Act that undermine constitutional protections of personal freedom. Under the banner of the New York Bill of Rights Defense Campaign a coalition of close to 100 organizations has been formed to oppose the extension and expansion of the Patriot Act. Organizations joining in this campaign include the Greater New York Labor-Religion Coalition, the NAACP, the National Association of Korean Americans — NY Chapter, the New York Public Library Guild, District Council 37. As New York’s senior senator and as a member of the Senate Judiciary Committee the positions you take, and the votes you cast, on these issues will be of great significance. And we call on you to provide the leadership that will guide your colleagues in the Congress to pass legislation that restores the protections of civil liberties that have long been recognized in our laws. Following are the three pieces of legislation through which this objective may be accomplished. The Patriot Act Acting with extraordinary haste, and with virtually no deliberation, Congress passed the Patriot Act just weeks after the terrorist attacks of September 11, 2001. In the face of political forces driving a rush to legislate, Congress recognized that a number of the broad and unprecedented powers granted by the legislation should be considered provisional measures. Consistent with this understanding, the statute provides that approximately ten percent of the provisions in the Patriot Act are subject to a sunset clause, which takes effect on December 31, 2005. These “sunset” provisions all but invite routine violations of the constitutional rights of free speech, freedom of association and of the right to a lawyer and due process of law when subject to a criminal investigation. Those members of the Congress who insisted upon a reconsideration of these provisions acted wisely. The provisions of the Patriot Act scheduled to sunset include the following:

Section 215, which grants the FBI sweeping authority to seize sensitive personal information and belongings, with no notice to the person whose information or property has been seized, and no requirement of proof of individualized criminal activity. The law places a “gag” on an organization (or its representatives) that is served with a Section 215 order by an FBI agent; disclosure to anyone that an order has been received is a crime. Section 218, which allows federal agents engaged in criminal investigations to use foreign intelligence powers, such as secret wiretaps and searches, without a requirement that the agents demonstrate grounds for suspicion of criminal activity. Section 206 and subsequent legislation which permit the government to monitor any individual with virtually no requirement that the government demonstrate the intercepted conversation will likely involve the target of the investigation.

It is not only those provisions of the Patriot Act due to expire that have generated controversy and opposition. Some of the most controversial provisions in the statute are not subject to the sunset clause. The Patriot Act is unprecedented in its scope; and its provisions remain largely unexamined by the Congress. The debate regarding the sunset provisions offers an opportunity to consider the broader reforms needed to address those permanent sections of Patriot Act that are constitutionally suspect and that sanction overzealous and intrusive law-enforcement practices. The following are among the permanent provisions of the Patriot Act that require amendment or repeal.

Section 213, known as the “sneak and peek” section, which permits the government to seize property and execute secret searches in ordinary domestic criminal matters (cases that do not involve foreign intelligence surveillance) without obtaining a warrant and without informing the target of the search for weeks, months, or years after the search has been executed. Section 802, which defines “domestic terrorism” so broadly that it makes one liable as a terrorist merely for engaging in nonviolent civil disobedience. Section 505, which broadens the authority of the FBI to issue “National Security Letters.” With such a letter in hand, a federal agent can seize personal records secretly and without any judicial oversight. A federal district court judge in New York has declared Section 505 to be in violation of the First and Fourth Amendments of the U.S. Constitution.

The Security and Freedom Enhancement Act Congress now has the opportunity to place common-sense limits on the Patriot Act while still providing law enforcement agencies the tools they need to protect our safety. The Security and Freedom Enhancement Act of 2005 (“SAFE Act”) has been carefully drafted to address these objectives. The SAFE Act would not repeal any provision of the Patriot Act, nor would it take away the surveillance powers or other police powers conferred upon the government by the Patriot Act. Rather, it would provide Congressional oversight and a measure of accountability to the public regarding the exercise of powers granted by the Patriot Act. For example, the SAFE Act would require that an order issued pursuant to Section 215 is based upon a showing of “specific and articulable facts” that connect the records the government is seeking to a foreign agent in possession of the records. It would also modify Section 213, requiring immediate notice to an individual whose property has been subjected to a search, unless delay is necessary to prevent a specific harm, such as physical injury or flight to avoid prosecution. The SAFE Act has bi-partisan support in both the Senate and the House. Senator Larry Craig introduced it on April 6, 2005. Twelve Senators have signed on as co-sponsors, including both Senators from New Jersey. Other supporters in the Senate include Republican John Sununu from New Hampshire, Republican Lisa Murkowski from Arkansas, and Democrat Ken Salazar from Colorado. Your sponsorship would give new impetus to this important initiative; it merits your endorsement. The Civil Liberties Restoration Act We also believe that Civil Liberties Restoration Act (“CLRA”) deserves your support. Originally introduced in 2004, it has yet to be reintroduced in the Senate. This legislation would amend those provisions of the Patriot Act that have led to serious abuses; it also addresses other civil liberties violations that have occurred as a consequence of national security initiatives undertaken pursuant to executive orders. The CLRA would prohibit the federal government from issuing a blanket order that closes all deportation hearings to the public. It would provide safeguards of basic due process for individuals who are jailed on suspicion of immigration violations; and it would reform the Patriot Act by limiting the government’s authority to engage in the secret seizure of records. In our view this great national debate over the dual concerns of national security and individual liberty is of historic importance. Of course these interests are not mutually exclusive. It is not necessary to cede one in order to preserve the other. We believe you are in a position to bring a greater measure of reason and balance to this debate. We understand that the Judiciary Committee may vote on the extension and expansion of the Patriot Act as soon as lawmakers return from the July Fourth recess. We therefore respectfully request that you give this matter your urgent attention and respond by next week. You can contact Udi Ofer by phone at (212)344-3005, ext. 242, or by email at We thank you for your consideration of our concerns. Sincerely, Donna Lieberman Executive Director, NYCLU Robert A. Perry Legislative Director, NYCLU Udi Ofer Project Director, NYBORDC

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