"I have grave concerns about covert searches of people's homes or businesses in general and about the design of this statute in particular," Barr said. "I would hope the members of the Judiciary Committee would agree with me on one fundamental premise of American law: the idea of strangers, including government agents, secretly entering the privacy of our homes and examining our personal possessions is a threat to the fundamental freedoms our Fourth Amendment was written to protect."
Lawmakers met to examine sections of the Patriot Act, including section 213, which authorizes "sneak and peek," or unlimited delayed notification, search warrants. These warrants are available in all criminal cases where the federal government says notification would result in destruction of evidence, danger, flight from prosecution, intimidation of a witness, or serious jeopardy to a criminal investigation. The ACLU has long argued that this catch all "serious jeopardy" clause is too broad and must be narrowly curtailed.
When the Patriot Act was passed, Congress made sure some of the most extreme powers would come up for review -- some parts of the act will "sunset" this year unless Congress reauthorizes them. While section 213 is not one of them, the ACLU and its allies have called for Congress to modify this power to ensure that proper checks are put into place.
In July of 2003, the House adopted -- by an extraordinary margin -- an amendment to the Commerce, Justice and State funding bill that would bar federal law enforcement from implementing "sneak and peek" search warrants. Rep. C.L. "Butch" Otter (R-ID) offered the amendment, which passed by a vote of 309 to 118, with 113 Republicans voting in favor. While the measure was dropped from the final bill, the ACLU pointed to the vote as overwhelming evidence that many in Congress feel that some portions of the Patriot Act must be adjusted.
Congressman Otter, along with bipartisan allies in both chambers of Congress, has introduced the "Security and Freedom Enhancement Act." The measure would make corrections to the Patriot Act -- including section 213 -- to bring it back in line with the Constitution.
"The Safe Act would help restore the liberties we've lost, and put limits on the use of secret searches," said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. "Americans cherish their freedoms guaranteed by our Constitution and are rightly skeptical of the demands by any executive branch for vast secret search powers. Congress should act to restore those freedoms."
