1) Section 215 (known as the "library records" provision, but which actually applies to "any tangible thing") which does not require any individualized suspicion to get a court order for any record wanted in intelligence investigations;
2) Section 206 (known as “John Doe” roving wiretaps in intelligence investigations, which allow multiple phones to be tapped) which does not require law enforcement to ascertain that a suspected foreign terrorist is using the phones being listened to by government agents;
3) The lone wolf provision (added by the 2004 intelligence bill) which applies the Foreign Intelligence Surveillance Act's secret surveillance powers to non-US citizens in this country but without requiring that they be acting for a foreign power and without sufficient safeguards.

• Even before the next debate over sunsetting powers in 2009, Congress can do the right thing. Lawmakers should pass the SAFE Act, as well as the amendments sponsored by Senators Russ Feingold (D-WI), Patrick Leahy (D-VT), Jeff Bingaman (D-NM), and Arlen Specter (R-PA), which would help cure many of the problems that are left unfixed in the law. Those amendments, along with legislation by Congresswoman Jane Harman (D-CA) and others, would put needed checks on the National Security Letter powers that are being used to gather the financial and internet transactions of tens of thousands of Americans.

The ACLU will continue to press for meaningful reforms. Along with our bipartisan allies, the ACLU will continue to push for common-sense changes to be made to the Patriot Act to bring it in line with the Constitution by restoring much needed checks and balances.

•  More than 400 communities across the nation (cities, towns, counties and eight states) have passed resolutions seeking reforms of the Patriot Act. These communities range from the conservative state of Montana to the progressive state of Hawaii; and from cities as large as New York to small towns like Elko, Nevada. For a full list of these resolutions, go to: http://www.aclu.org/resolutions. Unfortunately, due to pressure from the White House, Congress did not listen to the people.

•  Reauthorization does not make the Patriot Act constitutional. Through lawsuits filed in federal court the ACLU has challenged the constitutionality of Section 215 of the Patriot Act and the National Security Letter (NSL) provision expanded by the Patriot Act. We won our two challenges to the NSL powers in federal district court, which have been appealed by the government. It's clear that some sections of the Patriot Act went too far, too fast and violate the fundamental freedoms of Americans.

•  Fortunately, Congress did reject efforts, supported by administration allies, to expand the Patriot Act to further encroach on constitutional liberties. Lawmakers flatly rejected the "Domestic Security Enhancement Act," the so-called "Patriot Act 2." Congress also refused to act on the completely unwarranted proposal by the administration last year to allow the FBI to subpoena "any tangible thing" without court approval in intelligence investigations, which was spearheaded by Senator Roberts (R-KS), chair of the Senate Intelligence Committee.

•  The Patriot Act debate has been about preserving fundamental American values. Unfortunately, despite all of the changes the Patriot Act made to the Foreign Intelligence Surveillance Act (FISA) back in 2001, President Bush has arrogated to himself the unconstitutional power to ignore FISA's requirement of judicial oversight over all wiretapping of US persons. Even if we were to win all of the reforms needed to fix the Patriot Act until Americans demand that the president be required to follow the law any such changes could be ignored under the current regime.

•  President Bush's instigation of warrantless eavesdropping on Americans by the National Security Agency violates the Americans' Fourth Amendment rights and demonstrates a total disregard for the rule of law. Our system of government requires that the power of any president must not be unchecked--Americans demand a strong system of checks and balances. Presidents must faithfully execute the laws passed by Congress and cannot simply ignore those laws.

•  This administration has taken an extreme view on executive power. Congress must restore the rule of law and insist that Americans' rights be protected. Our great nation can, and must, be both safe and free.

More About Reauthorization
• The reauthorization bill that will become law retains the most serious flaws from the original Patriot Act, primarily failing to require that any private records sought in an intelligence investigation be about suspected foreign terrorists or Americans conspiring with them. This year's bill does make a number of other changes to the law:

• It makes explicit that any business that receives an order for records of employees or customers has a right to consult with a lawyer.

• The final bill allows lawyers to be consulted about whether to challenge the demand for records (and literally “any tangible thing”) including financial or internet transactions, they possess.

• Businesses do not have to get permission to consult an attorney or tell the federal government they have sought legal advice, as sought by the Bush administration.

• Customers or employees whose sensitive personal records are demanded can never be told their records were turned over to the government, unless the gag order that accompanies the demands are discontinued.

• The reauthorization bill will make it so that gag orders are not automatic and need not be permanent restrictions on the free speech rights of businesses.

• The law is also changed to allow businesses to challenge the gag orders they receive, but recipients will not be allowed to challenge any restriction on their free speech for a year.

• And the administration stacked the deck by imposing an unconstitutional standard for those challenges.

• Under the new law, if a high-level political appointee certifies that national security or diplomatic relations will be harmed, the court must consider that assertion "conclusive" unless the recipient proves that assertion was made in “bad faith” – meaning the gag order will stand. This plainly unconstitutional standard fails to comport with Americans' First Amendment rights.

• Businesses will also have an express right to challenge records orders under Section 215 of the Patriot Act, but the standard is stacked in favor of the government. And, the Bush administration refused to include a standard expressly allowing doctors, lawyers, and priests to challenge any effort by government agents to get privileged communications from clients, patients or penitents. We believe there is an inherent right to make such challenges to protect confidential conversations.

• Under the bill, NSLs, which are issued by the FBI for financial records and internet or phone logs without a court order, will be made more coercive and more punitive.

• They will become National Security Subpoenas (NSSs) and businesses that do not comply can be held in contempt by courts.

• Any employee -- from the mail clerk to the CEO of a company -- who intentionally discloses a demand for these records can go to jail for five years under the new law.

• Fortunately, we won a good standard for challenging these demands from the FBI for being unreasonable but the administration forced through an unconstitutional standard for challenging the accompanying gag (the conclusiveness standard discussed above).

• Other changes include an initial seven-day period of delay on sneak and peek search warrants, subject to exceptions and extensions. However, these secret search warrants can be issued by the court to search any home or business without any link to terrorism whatsoever or even an emergency. And 88 percent of these search warrants, which can still be kept secret for months or years, have been obtained by the Bush administration in cases that have nothing to do with terrorism.

• Under the new law, the Patriot Act's broad definition of domestic terrorism, which was defined to reach any state or federal misdemeanor or felony dangerous to life committed to change government policy, is now limited to specific federal terrorism crimes.

• The new law will also expand the power of the Secret Service to limit access to so-called "national security events," whether or not security is needed to protect the president. And anyone who uses false credentials or violates a Secret Service perimeter can now be charged with a federal crime.

• The new law will add some additional death penalties to federal crimes linked to terrorism, but we did stop the administration's effort to almost triple the number of federal death penalty crimes and harshly limit the writ of habeas corpus in all cases where a person has been accused of a crime. The final bill does allow the attorney general to certify that a state's system of providing counsel to criminal defendant's is adequate, despite the incompetent actions of untrained or negligent counsel in any individual case.