July 22, 2005

Dear Members of Congress,

Justice Antonin Scalia has stated:

"The Founders well understood the difficult tradeoff between safety and freedom. . . . Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.²

Justice Scalia wrote these words in a stirring dissent in one of the only cases challenging the executive¹s claim of unchecked power to fight terrorism considered by the Supreme Court, Hamdi v. Rumsfeld, 542 U.S. __, 124 S. Ct. 2633, 2674 (2004).

We urge you, as Congress begins debate on reauthorization of the USA PATRIOT Act, to heed Justice Scalia¹s warning that the Constitution should not be silenced or modulated in a time of war. As members of ethnic and faith communities most likely to be the first Americans to feel the brunt of unchecked federal law enforcement power and the silencing of constitutional principles, we urge you to reform the PATRIOT Act and adopt the Security and Freedom Ensured (SAFE) Act (S. 737). The SAFE Act has strong bipartisan congressional support and has been endorsed by Americans across the political spectrum.

If the federal government has evidence of people plotting to engage in terrorism, then it should do all it can to disrupt the plot and arrest, detain, and prosecute the perpetrators. But our government should use tactics designed to pursue actual wrongdoers, not law-abiding Americans. And it should do so within the parameters of the Constitution, which was drafted not at a time of hypothetical enemies, but after our nation¹s war of independence.

Unfortunately, some of the tools granted by the PATRIOT Act go too far and allow the federal government to monitor and collect information about law-abiding Americans who have no connection to terrorism whatsoever. These overly broad surveillance and other tools are a threat to all Americans but especially Arab, Muslim, and South Asian Americans who may be at a higher risk of being targeted by the FBI for monitoring of phone calls, emails and other everyday activity, searches of homes and businesses, and seizures of medical records, library records, and other personal, sensitive information ­ all without any evidence of wrongdoing or of being a terror suspect.

The FBI¹s conduct in investigating and wrongfully detaining Brandon Mayfield, a Muslim American lawyer in Portland, Oregon, as a potential suspect in the March 2004 Madrid train bombings, underscores the potential for abuse of sweeping law enforcement powers. The FBI conducted surveillance and searches of Mr. Mayfield and his property under law enforcement powers broadened by the PATRIOT Act. He was then wrongfully detained as a material witness for almost a month and was released only when Spanish authorities informed the FBI that the fingerprints on evidence found in connection with the investigation of the Madrid train bombings matched an individual who was not Mr. Mayfield. This case illustrates how the enormous power of the federal government can be brought to bear down on an innocent American, causing loss of liberty and trauma to the individual and his or her family.

In the alternative, the SAFE Act proposes a number of needed, common sense reforms. For instance, it requires individual suspicion for records searches, with an explicit right to challenge the order and the secrecy requirement. So, under the SAFE Act, the FBI is not forever barred from obtaining medical, library, or other records containing personal, sensitiveinformation. Rather, it can still obtain the information it needs to protect our country, so long as it shows a judge that the information sought relates to a suspected terrorist.

The SAFE Act also allows the government to conduct searches under section 213 without notifying the target, but it ensures that notice will only be delayed if it endangers evidence or a person's safety, or if it could incite flight from prosecution or witness tampering. Other important provisions include sensible privacy safeguards for roving wiretaps in foreign intelligence cases that are already required in criminal cases, a definition of domestic terrorism geared to serious crime, not protest groups, and further public reporting on the government¹s use of foreign intelligence surveillance powers.

We oppose a recent proposal adopted by the Senate Intelligence Committee that would grant the FBI even more power to seize records without appropriate checks and balances. This proposal to expand so-called "administrative subpoena" powers would allow the FBI to write its own search and disclosure orders with no judicial approval. Attorney General Gonzales has repeatedly emphasized that the prior judicial approval required for orders under Section 215 of the PATRIOT Act is a safeguard against abuse. Yet, the Attorney General¹s assurances would be meaningless, if the FBI could issue disclosure orders with no judicial approval.

Moreover, under current law, the FBI already has far-reaching compulsory powers to obtain any relevant information when it is investigating terrorism, under both its criminal and intelligence authorities. The government has made no showing that these powers are insufficient. We urge you to reject such an unjustified and largely unaccountable new power.

We also urge Congress to continue to scrutinize the federal government¹s use of the PATRIOT Act, even after this debate on reauthorization has ended. As you know, many of the PATRIOT Act powers are exercised in secret, outside the public¹s eye. The proper functioning of our democracy requires that Congress check the power being wielded by the executive branch to ensure that it is not infringing the Constitution.

Finally, we note that the PATRIOT Act is not the universe of our concerns. Section 1001 of the PATRIOT Act, which requires a report by the Inspector General of the U.S. Department of Justice on the status of civil rights and civil liberties, was a recognition by Congress that Congress and the American people must continue to be vigilant in overseeing the conduct of the executive branch. In fact, certain administration conduct under authority other than the PATRIOT Act since September 11, 2001, including the roundup and detention of hundreds of mostly Arab and Muslim men in the weeks after the attacks, the use of the material witness statute to detain Americans, a series of interview programs targeting mostly Arab and Muslim men, and the NSEERS Special Registration program, raise fairness and due process concerns. We urge Congress to apply at least the same level of scrutiny that it has applied to the Administration¹s use of the PATRIOT Act, to the Administration¹s use of laws other than the PATRIOT Act that raise serious questions about whether its actions are consistent with the Constitution.

As Justice Scalia noted, war was not unknown to our Founders. They well understood war and drafted the Constitution in response to conflict. Now, at another time of threats to our nation¹s peace and security, Congress must act to ensure that the laws it crafts, and the steps taken by the Administration, to protect the American people are consistent with the founding principles of our nation.

Thank you for your attention and consideration to our concerns.

Respectfully submitted,


National Association of Muslim Lawyers (NAML)
Bay Area Association of Muslim Lawyers (BAAML)
Muslim Bar Association of Chicago

National Muslim Law Students Association (NMLSA)
Association of Pakistani Physicians of North America (APPNA)
Pakistani American Public Affairs Committee (PAKPAC)
South Asian American Leaders of Tomorrow (SAALT)