2011-02-15 Renewed Patriot Act provisions and forthcoming extensions

Renewed Items

On February 14, the Republican-led U.S. House of Representatives had an opportunity to reject or approve an extension of governmental authority to use surveillance methods deemed permissible under the current Intelligence Reform and Terrorism Protection Act (pdf) and the USA Patriot Act, whose stated goal is "to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and other purposes," including:

  • To strengthen U.S. measures to prevent, detect and prosecute international money laundering and financing of terrorism;

  • To subject to special scrutiny foreign jurisdictions, foreign financial institutions and classes of international transactions or types of accounts that are susceptible to criminal abuse;

  • To require all appropriate elements of the financial services industry to report potential money laundering;

  • To strengthen measures to prevent use of the U.S. financial system for personal gain by corrupt foreign officials and facilitate repatriation of stolen assets to the citizens of countries to whom such assets belong.

The nine-month renewal of three Patriot Act provisions cruised to approval today, with a vote of 275 to 144. There were 27 Republican no votes and 65 Democratic yes votes for the extension. The full voting breakdown can be seen here.

Here are the three renewed items from the original Foreign Intelligence
Surveillance Act (FISA) Amendments, an html copy of which can be found here:

  • Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (IRTPA), also known as the “lone wolf” provision, which simplifies the evidentiary showing needed to obtain a FISA court order to target non-U.S. persons who engage in international terrorism or activities in preparation therefor, specifically by authorizing such orders in the absence of a proven link between a targeted individual and a foreign power;

  • Section 206 of the USA PATRIOT Act, which permits multipoint, or “roving,” wiretaps—i.e., wiretaps which may follow a target even when he or she changes phones—by adding flexibility to the manner in which the subject of a FISA court order is specified; and

  • Section 215 of the USA PATRIOT Act, which broadens the types of records and other tangible things that can be made accessible to the government under FISA.

As Research fellow Julian Sanches points out in an excellent analysis of these provisions, the "lone wolf" authority allows for the monitoring of non- U.S. citizens in the U.S. "who are suspected of involvement in terrorist activities ... under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other 'foreign power.'"

It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”--but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers.

Lone Wolf also blurs the traditional distinction between foreign intelligence and investigations involving domestic national security.

The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.

Roving wiretap authority, the second item, allows wiretapping court orders to apply to multiple phone lines, in the event that a suspect is using more than one. Traditional wiretap authority in criminal cases only applied to one phone line. This is significant because the traditional requirement for identifying uniquely named targets does not allow for “John Doe” wiretap warrants "that name neither a person nor a specific 'place' or facility--disturbingly similar to the 'general warrants' the Founders were concerned to prohibit when they crafted the Fourth Amendment."

The third item, Section 215, is also troubling in that it grants the FISA court the power to order the production of both business records and any other “tangible thing” on the basis of "reasonable grounds" and a belief that the records are in some sense "relevant" to an investigation. As it stands, there is no "probable cause" requirement and there is no requirement of any connection to terrorism at all.

These concerns may explain why the extension for the provisions failed to pass last week, when it fell 7 votes short of approval after being brought to the floor under "fast-track rules" that require a two-thirds vote--a process usually reserved for less controversial proposals. As the Washington Post and others had predicted after the failed first attempt, however, the extension was very unlikely to be rejected under "normal rules" the second time around.

Congressman Justin Amash, who voted against the extension, posted the following objection on Facebook:

The U.S. House just debated and voted on H.R. 514, To Extend Expiring Provisions of the USA PATRIOT Act and Intelligence Reform and Terrorism Prevention Act. This renewal allows the government to obtain a broad production order to confiscate your business records without disclosing to you the purposes of the investigation while prohibiting you from discussing it with anyone. It failed 277-148 (needed 2/3 majority).

Congressman Amash also expressed his concerns in an e-mailed statement last week:

“Like many Republicans and Democrats concerned with protecting civil liberties, I have serious reservations about the USA PATRIOT Act provisions up for renewal. The business records provision allows the government to order the production of ‘any tangible things’ — e-mails, phone logs, and even library records. Worse still, the company turning over the records to the government is forbidden from telling the records’ owner of the order. Likewise, the Act’s roving wiretap provision goes far beyond a similar provision in criminal law. It may allow the government continuously to monitor pay phones or public computers, even when a suspect is not using the devices. The breadth of the provisions raises serious Fourth Amendment concerns in my mind, and I cannot support them as currently written.”

Further Possible Extensions and Revisions Coming in February

The Electronic Frontier Foundation (EFF) has asked U.S. citizens to take action toward a reform of the Patriot Act--a reform that was promised by Congress itself. Interestingly, when Congress extended the Patriot Act in February 2010, the decision was defended with the justification that Congress needed more time "to fully consider a range of PATRIOT reform proposals." However, the Patriot Act extension bill does not contain any reform aimed at promoting human rights.

Conversely, at the end of this month, Senate Democrats and Republicans will decide on an approach to extend the legal authority articulated in the Patriot Act. Three bills have been introduced to approach the issue.

  1. Senate Judiciary Committee Chairman and Senator Patrick Leahy's Bill is the most modest of the three and proposes extending three surveillance authorities until the end of 2013; it also promises some overseeing of the U.S. government's surveillance activities.

  2. New Judiciary ranking member Senator Chuck Grassley of Iowa has introduced a bill to extend the Patriot Act's authorities permanently. Both Grassley and Senate Majority Leader Mitch McConnell of Kentucky said that temporary extensions and Leahy's promise of "oversight" would not be beneficial to U.S. intelligence: "The threat of terrorism isn't going away so we must provide our agents with the tools they need to get the job done," Grassley said.
    "Given that terrorist threats, including those from self-radicalized individuals, continue to evolve, we must ensure that our law enforcement agents are not burdened with new restrictions on existing authorities."

  3. Senator Dianne Feinstein of California seeks to extend the bill through to 2013 without the oversights proposed by Grassley.

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