Part I

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On December 31, sixteen portions of the USA Patriot Act are set to expire (or "sunset"). Congress is currently holding hearings on the Act, and is considering whether to amend the Act to curtail the broad surveillance powers the Act has given to the federal government.

Under the PATRIOT Act, the government is able to monitor an individual's web surfing records, use roving wiretaps to monitor phone calls made by citizens who may be "proximate" to the primary person being tapped, it can access Internet Service Provider (ISP) records, and it can even monitor the private records of citizens involved in legitimate protests.

Following the passage of the USA PATRIOT Act after the September 11, 2001 terrorist attacks, the Executive branch argued that these broader powers would be used to put terrorists behind bars. But, a few of the Act's provisions can be used to gain information about U.S. citizens, in the context of investigations, with no demonstrated link to terrorism.

Many people are becoming aware that the Act must be amended. The USA PATRIOT Act, as a whole, has important powers. But, as it is written, the Act goes far beyond its justification, which is to prevent terrorism.

In the next two articles, we intend to focus on some of provisions of the Act being "sunsetted". These provisions should either be repealed or be allowed to expire in December.

But, before any discussion regarding the sunsetting sections of the Act, let’s ponder as to what burden of proof should apply, and what information is available in helping us evaluate the Act's use.

In its last report, the 9/11 Commission recommended that the President should bear the "burden of proof" to prove to Congress that it should to renew the Act provisions that are subject to "sunset" limitations. To be specific, the Commission recommended that the provisions be allowed to "sunset" unless the President can prove that each power truly enhances security, and that there is adequate supervision of the use of such powers in ensuring that civil liberties are protected.

Based upon information that has been made public so far, it's become clear that such a showing cannot be made. And the Executive Branch must make more information public before Congress reaches a decision.

Both the FBI and the Department of Homeland Security have provided vague information regarding the the law's use, leaving a number of politicians frustrated with the lack of detailed information.

For instance, Senator Jon Kyl (R-AZ), released a file indicating that his requests to the Justice Department "to provide a comprehensive report" on the "provisions of the PATRIOT Act subject to 'sunset' remain unanswered." But, Senator Kyl's file adds, "Such a report is a critical element in Congress' responsibility to provide meaningful oversight before determining whether to change the law with respect to these provisions."

Congress must be provided by the Justice Department full accounts of how the government has used its newfound authority under the PATRIOT Act. But, as we will explain later, even the information received so far provides reason enough to cause Congress to either allow these sections to "sunset," or significantly amend them.

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