In a letter sent to Sen. Patrick Leahy (D-VT) on Dec. 9, 2010, Attorney General Eric Holder affirmed the implementation of limited civil liberties safeguards requested by the Senator in March. Leahy had asked the Department of Justice (DOJ) to implement reforms to Patriot Act (Patriot) powers after the Senate extended three Patriot provisions without amendments in December 2009.  The letter said, “[W]e have determined that many of the privacy and civil liberties provisions [sought] can be implemented without legislation.”  Holder’s letter comes less than three months before Congress will hold a vote to reauthorize the same three expiring provisions on Feb. 28, 2011.

In October 2009, the Senate Judiciary Committee passed the Patriot Act Sunset Extension Act (S. 1692). The bipartisan bill included several measures to reign in the widespread abuse of Patriot Act surveillance powers by law enforcement. The full Senate did not hold a vote on S.1692 choosing instead to reauthorize the provisions without added protections for American civil liberties. The President signed a one-year extension of the three sections in February.  In March, Leahy wrote a letter to Holder asking the DOJ to enforce the safeguards proposed in S. 1692, saying, “it would be a mistake to wait yet another year before the Administration implements these reforms.”

Existing protections identified in Holder’s letter include:

  • A policy mandating the Federal Bureau of Investigations (FBI) retain “a statement of the specific facts that the information sought is relevant to an authorized investigation” before obtaining a National Security letter (NSL).

  • Procedures to notify recipients of NSLs of their “opportunity to contest any nondisclosure requirement.”

  • The creation of procedures on Oct. 1, 2010 governing the “Collection, Use and Storage of Information derived from National Security Letters.”

In response to Holder’s letter, Leahy issued a statement on Dec. 9, saying, “I still believe that these important oversight and accountability provisions should be enacted in law, but I appreciate that by implementing key measures in the bill, the Department of Justice has embraced the need for oversight and transparency.”

Julian Sanchez, a research fellow at the CATO Institute, says the oversight Holder’s letter describes is not a victory for civil liberty advocates. Instead, it paves the way for Congress to reauthorize expiring provisions of the Patriot Act without holding a meaningful debate about the “serious abuses of Patriot powers” and protecting the privacy and freedom of Americans. “Many of the milder reforms proposed during the last reauthorization debate now appear to have been voluntarily adopted by Holder. Unfortunately, this may make it politically easier for legislators to push ahead with a straight reauthorization,” Sanchez added.