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Courts and Civil Liberty Groups Agree: Congress Must Reform the Patriot Act

“If leadership continues to stand in the way of necessary reform, lawmakers should simply allow the Patriot Act provisions to sunset.” – ACLU

Congress will convene in a rare Sunday session to consider extending portions of the Patriot Act, before they expire on June 1. According to The Hill, Congress has until 8 pm on Sunday to re-authorize the Act or current activities under the program will be disrupted.

Pressure has been mounting on both sides of the debate. The USA Freedom Act, a bill that would have instituted some reforms to the dragnet metadata programs used under the Patriot Act, failed for the second time on Saturday, May 23. An earlier — and stronger — version of the bill failed in November 2014.

Opponents to the 2015 Freedom Act came from both sides of the debate. Some, like U.S. Senator Rand Paul (R-Ky.), who spoke for 10 hours against re-authorizing the Patriot Act, voted against the The USA Freedom Act because he argues it does not go far enough to protect constitutional rights. His speech pushed Congress into a weekend consideration of what to do about the controversial legislation.

Civil rights groups, like the ACLU and the Electronic Frontier Foundation (EFF), who have filed multiple cases against the government’s surveillance programs, have tepid support for The USA Freedom Act. The EFF encouraged Congress to vote for the Freedom Act because it is a step in the right direction, however small. The ACLU, in its recent letter to Congress, said it does not give or deny support for the 2015 Freedom Act, and offered specific reforms to amend the bill.

President Obama and U.S. Attorney General Loretta Lynch advocated for passage of the Freedom Act as a reasonable compromise between security and privacy. Ranking House Intelligence Committee member Adam Schiff (D-Calif.) said it was a catastrophe that the Act failed. U.S. Senator Dianne Feinstein (D-Calif.) expressed support for the Act, but also introduced a competing bill that “would impose a data-retention mandate and allow many forms of large-scale collection to continue,” according to the ACLU.

Among those opposed to any reforms are Senate Majority Leader Mitch McConnell, presidential hopeful Lindsay Graham, former CIA Michael Hayden, former Attorney General Michael Mukasey, and Senate Intelligence Committee member Richard Burr. They have all sounded alarms over weakening government tools for terror investigations, with Mukaskey and Hayden penning a commentary in the Wall Street Journal about the USA Freedom Act, titled “NSA Reform Only ISIS Could Love.”

Proponents of mass surveillance under the Patriot Act insist that sweeping data collection powers are necessary to thwart terror attacks. However, many reports have concluded that the program unnecessarily compromises constitutional rights and has not prevented a single case of terrorism.

A recent Second Circuit Court of Appeals ruling, in ACLU vs. Clapper, determined that the government’s mass surveillance programs is illegal under section 215 of the Patriot Act. The new decision rejected many of the lower court’s rulings on standing (the plaintiffs’ proof of harm and possible relief), statutory claims concerning the legal authority of mass surveillance, and the government’s rights to secrecy and immunity under section 215. The Second Circuit threw out the lower court’s ruling and sent the case back to be reconsidered.

“The Second Circuit Court ruling is significant,” said Andrew Crocker of the EFF.

In an interview with IVN, Crocker said the Second Circuit Court decision should affect future rulings on mass surveillance and influence congressional reforms.

“Reconciling the clash of these values (security vs. privacy interests) requires productive contributions from all three branches of government.” – Second Circuit Appeals Court, ACLU vs. Clapper

The Second Circuit stated that constitutional challenges are warranted, but did not decide on constitutional questions because of pending legislative action to end or reform the Patriot Act. The court also cautioned that, if reforms are not taken, the courts may take further action under the ruling that current programs are illegal.

What will wash out of Congress is to be seen, but public opinion, court decisions, investigations by the executive branch, and congressional opposition, like Senator Rand Paul’s, are all rising to protect civil liberties and constitutional rights.

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