U.S. Chamber, Civil Liberties Union Ally to Limit Patriot Act

Nov. 14, 2005
Bloomberg

Even in Washington, this isn't a coalition you see every day.

The U.S. Chamber of Commerce and National Association of Manufacturers, the nation's two largest business groups, have formed an alliance with the American Civil Liberties Union and criminal-defense lawyers to oppose portions of the USA Patriot Act, the anti-terrorism law passed in the wake of the Sept. 11, 2001, attacks.

The groups want Congress to limit provisions allowing the Federal Bureau of Investigation to demand, with only limited review by judges, that companies turn over personal records of customers, suppliers and employees. The ACLU is concerned about privacy rights; businesses are worried about lawsuits, and even criminal liability if the disclosure of records violates foreign privacy laws.

``Government is looking to deputize in-house counsel and, generally, businesses,'' says Susan Hackett, senior vice president of the Washington-based Association of Corporate Counsel, a group representing company attorneys that opposes the provisions.

``You're opening yourself to liability,'' particularly to overseas suits, says Hackett, the group's general counsel. ``It could be incredibly onerous and incredibly expensive.''

The Patriot Act expires at the end of the year unless Congress renews it. Negotiators for the House and Senate meet this week to reconcile their differing versions of the renewal legislation. The Senate version takes into account many of the business-civil liberties coalition's concerns; the House version doesn't.

`National Security Letters'

The lobbyists are focusing on two particular provisions of the law. One of them, which allows investigators to use so- called National Security Letters to request records, has been invoked about 30,000 times a year, according to the Washington Post. The Justice Department won't confirm that number, saying it's a secret.

The business and rights groups -- which include the Washington-based National Association of Criminal Defense Lawyers, which represents 47,500 attorneys, judges and law Professors -- are asking that the new version of the law require more judicial oversight of the requests, a position that is opposed by President George W. Bush.

Because of the sensitive nature of the topic, the business groups -- which represent companies such as Irving, Texas-based Exxon Mobil Corp., Midland, Michigan-based Dow Chemical Co. and Stamford, Connecticut-based Xerox Corp. -- have allowed civil- liberties advocates to be the public face of the campaign. No business wants to be seen as helping terrorists, several lobbyists say.

`Voluminous Demands'

``We're not trying to hamstring the Justice Department or the FBI in terms of pursuit of legitimate terrorists,'' says R. Bruce Josten, executive vice president of government affairs at the Washington-based U.S. Chamber of Commerce, which lobbies on behalf of 3 million businesses. ``We're trying to free the business community from voluminous demands of records.''

The civil-liberties advocates say they welcome the clout business lobbyists bring. ``When they express concerns, and they don't do it lightly, it ought to give members pause,'' says Lisa Graves, the New York-based ACLU's senior counsel for legislative strategy.

Over the past month, the coalition has called and met with lawmakers' staffs, including those of Republican Senators Orrin Hatch of Utah and Arlen Specter of Pennsylvania, the Judiciary Committee chairman. The business groups also made their case in an Oct. 4 letter to Specter.

Specter Is `Key'

The groups have focused much of their attention on Specter, who crafted the Senate version in his committee. ``The key people on the issue are in the Senate, particularly, Senator Specter,'' says Bob Barr, a former Republican congressman from Georgia who is now lobbying for the Senate version of the bill as chairman of Patriots to Restore Checks and Balances, a Washington-based civil-liberties group.

At the first public meeting of the House and Senate negotiators on Nov. 10, Specter praised the Senate legislation for attracting unanimous support on his panel. ``We have been very concerned about civil-liberties issues,'' he said. ``The extreme sides of the spectrum have joined together'' to back the measure.

Hackett, of the corporate attorneys' group, says a lobbyist for her group has visited lawmakers to discuss the measure, though she declined to give names. Over the past few months, Hackett says, she has encouraged in-house lawyers from companies based in the districts of key lawmakers to make calls in support of changes in the law. She declined to identify the companies.

Neither Budges

While Justice Department officials listened to the business concerns on a conference call with the groups three days after their letter was released, neither side swayed the other, says Hackett, who was on the call.

The final legislation should require the FBI to show how information demanded in a National Security Letter is connected with spies, terrorists or other foreign agents, business lobbyists say. Neither the House nor Senate versions of the measure include such a provision.

House negotiators such as Republican Representatives James Sensenbrenner of Wisconsin and Howard Coble of North Carolina have said they are open to changes. On Nov. 9, Sensenbrenner supported a non-binding motion that passed the House by voice vote urging the negotiators to push for four-year expiration clauses on some provisions giving the FBI power to demand records. The original House measure calls for 10-year sunsets.

Not as Draconian

Justice Department officials, who have been on Capitol Hill lobbying for the House version of the law, say the provisions aren't as Draconian as portrayed by opponents.

The department officials, who requested anonymity, argue that the National Security Letters are a preliminary investigative tool designed to rule suspects in or out. While those receiving letters must reveal billing information for phone numbers or e-mail addresses, they aren't required to divulge the content of the messages or calls. The FBI needs a court order if recipients balk at turning over requested data.

Requests made under another section of the act, which allow a wider range of records to be requested, are reviewed by a court that meets in secret.

As of March 30, the most recent date for which data are available, the FBI has sought and received 35 orders allowing it to obtain records under the provision, the agency says. The records obtained included drivers' licenses, apartment leases, credit-card records and the names and addresses of telephone subscribers.

`The Appropriate Balance'

The act ``strikes the appropriate balance between protecting our national security and preserving the civil liberties'' of American citizens, says Justice Department spokesman Brian Roehrkasse. In the four years since the law was enacted ``there has not been a single verified abuse of the act's provisions,'' he says.

Business lobbyists say the law trespasses on companies' constitutional right against unreasonable searches. The FBI may request employee records, only to find out that a business hired an alien without the correct documentation, says Quentin Riegel, deputy general counsel of the Washington-based National Association of Manufacturers, which represents companies in all 50 states.

The act ``is a way to get around constitutional protections,'' Riegel says. ``There's the potential for any technical or substantial legal violation to come under government scrutiny.''


To contact the reporter on this story:
Jeff Bliss in Washington at
jbliss@bloomberg.net or Robert Schmidt at
rschmidt5@bloomberg.net.




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