We will never forget the searing images from September 11, 2001, that played out across our television screens and in front of our eyes. The image that sticks most with me was the sight of hundreds of abandoned cars belonging to World Trade Center workers parked at a New Jersey commuter lot, each vehicle representing someone who would never come home from work.
At the time I represented New Jersey in the U.S. Senate. Working with my colleagues on the Judiciary Committee, we debated how to thwart the next terrorist attack. Many of our ideas were incorporated into the Bush-era USA Patriot Act. While not billed as emergency powers, it was clear to us that the raft of legislation that followed 9/11 was in response to an emergency. What we viewed as immediate measures to protect American lives became a permanent framework that has governed American counterterrorism and counterintelligence for decades.
In the years since we passed the Patriot Act, many of my former colleagues and I, while remaining firm on the need to protect national security, have become increasingly skeptical — even concerned — those powers have been abused and contain potential for even greater abuse.
What we thought we passed became something much greater
These laws have been reauthorized with curtailed debate, over the objections of civil liberties advocates. In 2013, we were shocked to see the extent of mass warrantless surveillance after revelations by leaker Edward Snowden. A modified version of the Patriot Act, the USA Freedom Act, passed in 2015 to correct the lawless practices Snowden revealed. And yet it appears that shortcomings with the surveillance of Americans remains entrenched.
This became clear with the recent release of Justice Department Inspector General Michael Horowitz’s report on the origins of the FBI’s investigation into potential ties between the Trump 2016 campaign and Russia. While stating clearly that there was no sign of bias in the FBI’s decision to open the investigation, Horowitz laid out a string of errors and violations of Americans’ rights. One wonders, if this is how the FBI operates in a case bound to end up under a microscope, how fairly do they treat Americans involved in less prominent cases?
Two practices are of particular concern. Measures intended to fight international terrorism might now be used for “backdoor surveillance” of Americans at home. “Parallel construction” is another problematic practice, allowing law enforcement to make a case against Americans having nothing to do with terrorism.
The latter is a particular peril of programs under Section 215 of the Foreign Intelligence Surveillance Act, which holds that any information you give to a third party such as Google, Amazon’s Alexa, a doorbell video camera or any other commercial entity, is fair game for surveillance. While the law does limit access to such business records information to cases “relevant” to national security, that term is elastic enough to include almost anything the government wants to see.
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Key components of Section 215 are set to expire on March 15. Word from the hill is that there is strong, bipartisan support for reform from many members of the House Judiciary Committee, as well as from civil liberties stalwarts like Sen. Patrick Leahy of Vermont. Members of the liberal Progressive Caucus and conservative Freedom Caucus are circulating ideas for reform with backing from groups across the ideological spectrum, from the ACLU to FreedomWorks.
Congress should take time to reconsider
These reformers, however, face intense pressure from surveillance hawks to pass a “clean” reauthorization that includes no reforms. Congress should instead use the next two months to craft changes that will bring surveillance law in line with the U.S. Constitution.
One needed reform is to protect the First Amendment. Current law holds that investigations can be based on speech or religion, so long as they are not based “solely” on how one exercises one’s First Amendment rights. Congress should tighten this elastic standard to disallow possible political surveillance of journalists, religious groups and campaigns.
Congress should also bring Section 215 business records provision into line with the Fourth Amendment requirement of probable cause whenever this information is used in a criminal proceeding against a U.S. person.
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The current system commendably allows for outside legal experts to critique surveillance requests before the Foreign Intelligence Surveillance Court. But this resource has been used sparingly. Congress should expand that program whenever an important constitutional issue is at stake.
We will never forget those empty cars and the need for surveillance measures to keep another attack from happening again. But Congress should take this opportunity to bring surveillance practices more in line with the Constitution. And law enforcement and intelligence agencies would be well advised to respect the intent of those who write surveillance legislation.
Robert Torricelli served from 1983 to 2003 as a U.S. representative for New Jersey’s 9th district and as a U.S. senator. Follow him on Twitter: @bobtorricelli
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This article originally appeared on USA TODAY: Congress, take this opportunity, and reform the Patriot Act