Tag: Patriot Act

The Heritage Foundation on the Patriot Act

If you wonder why House Republicans were so keen on ramming through an extension of the Patriot Act without hearings or debate, take a gander at the Heritage Foundation’s blog post and Web memo on the topic. I want to run through the latter in some detail, because I think it’s telling just how poorly the case against reform stands up to scrutiny in the rare instances when the law’s defenders feel obliged to make an argument more sustained than “Boo! Terrorists!” 

Here’s how they begin:

With at least 36 known plots foiled since 9/11, the United States continues to face a serious threat of terrorism. As such, national security investigators continue to need these authorities to track down terror leads and dismantle plots before the public is in any danger. These three amendments—which have been extensively modified over the years by Congress and now include significant new safeguards, including substantial court oversight—are vital to this success.

I’ve debated co-author Jena McNeil Baker on Patriot a few times, and she invariably leads off with a running tally of foiled terror plots. I’m not sure exactly which cases make her current list, but in the past she’s cited yahoos like the Lackawanna Six, who don’t appear to have had any actual plot to dismantle, and since our last exchange the FBI has augmented the count via its innovative strategy of planning terror attacks for itself to foil.

But let’s all agree the terror threat is real and serious even without this sort of inflation. What evidence do the authors have that any of the three expiring authorities were “vital” in any of those cases? There just isn’t any. Even if it were true, the authors would have no basis in the public record for the assertion. The evidence we do have, however, suggests just the opposite. Lone Wolf has never been used, so it certainly wasn’t vital. FISA roving authority has been granted an average of 22 times per year since Patriot, and in many of those cases, investigators found they didn’t end up needing to use it. And none of the reports I can recall reading on apprehended wannabe-terrorists suggested that they were practicing sophisticated countersurveillance tactics. The Office of the Inspector General couldn’t find any major case developments attributable to 215 business record orders, which also don’t seem to be used that frequently.

If one of the sunsetting powers had played an important role in disrupting a concrete plot or attack, though, you’d think Justice Department officials would have every incentive to say so loudly and unambiguously, even if they couldn’t get into operational specifics. While these facts are suggestive, of course, I can’t say with certainty that the two powers that have actually been used definitely didn’t play a vital role in any of those (let’s be generous) 36 cases. It would be more convenient if I could say so, but I’m at something of a disadvantage here: In the absence of evidence, I lack the panache needed to make whatever sweeping assertions would help my position. I can only say that all the evidence we do have cuts against that bold claim.

We move to roving wiretaps, which we’re told are a “garden variety” surveillance tool used “routinely” in criminal investigations. The authors seem to be operating with highly idiosyncratic definitions of those terms: In 2009, there were 2,376 wiretap warrants issued for criminal investigations, of which 16 were roving. But routine or not, pretty much everyone in fact agrees that roving authority should be available for intelligence investigations. Astonishingly, the Heritage memo never even mentions the actual issue civil libertarians have with this provision: that unlike the parallel criminal authority, it permits roving warrants that don’t name an individual target. So the authors spend five paragraphs mounting an irrelevant defense of a power nobody contests in principle, but never informs their readers about the real point of controversy, let alone argue for the asymmetry.

Next, business record orders. The blog post summarizing the Web memo confusingly claims that there was no FISA authority to compel the production of records before Patriot, which isn’t true. There just had to be some factual basis (not even “probable cause”) for thinking the records belonged to a terrorist or foreign agent. Oddly, while the Heritage memo does reference Patriot’s expansion of the types of records that could be obtained, it fails to mention the elimination of this key requirement—which, again, is precisely the change to which critics have objected. We’re also told that heightened standards apply to demands for records that “might have the slightest relation to freedom of speech and expression,” which is ridiculous. Library and bookstore records get a bit more protection because librarians raised an admirable fuss about this provision, but there’s no similar protection for records of people’s online reading habits, which have at least as much bearing on modern speech and expression as someone’s library borrowing. There’s the usual analogy between this authority and prosecutorial or grand jury subpoenas, but (perhaps you’re noticing a pattern here) the big, glaring difference between them is not even mentioned: Those processes are ultimately public, and that publicity serves as the strongest practical check on prosecutors who might be tempted to sweep too broadly, while giving third-party record holders a far stronger incentive to challenge improper requests on behalf of their customers.

By the time we get to Lone Wolf, it feels like they’re not even trying anymore:

While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.

Why can’t they use the same criminal authority they’re forced to rely on when a lone individual who’s a citizen seeks to do harm to the United States? Why are the extraordinary breadth and secrecy of FISA surveillance, designed for dealing with state-sponsored espionage agencies and global terror networks, necessary when the adversary is some guy acting alone? Crickets.

Finally, we get these two howlers in the conclusion:

Little evidence has ever been proffered to demonstrate any PATRIOT Act misuse…. The act has been narrowed and refined continuously, contributing to the fact that no single provision of the PATRIOT Act has ever been found unconstitutional.

Now, as it happens, both of those claims are pretty clearly false. Federal courts have, in fact, found the gag provisions of the National Security Letter statutes to be unconstitutional—though the court opted to impose its own set of requirements rather than voiding the statutes outright. As for misuse, I’ll defer to the Inspector General of the Department of Justice, who characterized the FBI misuse of that authority uncovered by his office as “widespread and serious.”

But these are, in any event, absurd standards. Covert surveillance whose targets are never informed about it turns out to be rather difficult to challenge in court—harder still when the government can assert a state secrecy privilege that prevents courts from reaching the merits of the challenges that do arise. The identification of rule violations mostly relies on self-policing by intelligence agencies—which report plenty, though they often take their sweet time about it. More importantly, if the intended use of these authorities is to allow the government to siphon up vast amounts of information about thousands of mostly innocent Americans, and retain that information forever in massive classified databases, focus on “misuse” is something of a red herring. The “correct” use is too intrusive.

So this is what the best case for Patriot reauthorization without reform looks like, apparently: bold assertions offered without supporting evidence, and a persistent refusal to engage the actual objections raised by critics. No wonder they’re so anxious to bypass a debate.

Patriot Reauthorization Vote Fails… Now What?

First, the good news: Last night, civil libertarians had a rare excuse to pop champagne when an effort to fast-track a one-year reauthorization of three controversial Patriot Act provisions–set to expire at the end of the month–failed in the House of Representatives. As Slate’s Dave Weigel notes, the vote had been seen as such a sure thing that Politico headlined its story on the pending vote “Congress set to pass Patriot Act extension.” Around this time last year, a similar extension won House approval by a lopsided 315-97 vote.

Now the reality check: The large majority of representatives also voted for reauthorization last night: 277 for, 148 against. The vote failed only because GOP leadership had sought to ram the bill through under a “suspension of the rules”–a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments–which required a two-thirds majority for passage. Given last week’s developments in the Senate, it’s still a near certainty that the expiring provisions will be extended again before the end of the month. In fact, there’s a Rules Committee meeting today to get the bill back on the House floor. Also, while the defection of 26 Republicans who voted against reauthorization is the first real pushback against leadership we’ve seen since the GOP took the House, some of the talk that’s circulated about a Tea Party backlash against the surveillance state seems premature. As Weigel notes, just eight of the 26 Republican “no” votes were incoming freshmen, and many representatives prominently associated with the Tea Party were on the other side. Some of the resistance seems to have been generated by the fast-track approach, as there haven’t been any hearings or mark-ups on Patriot legislation.

That said, the tide does seem to be shifting somewhat. The failure of the fast-track vote means that we may see the reauthorization introduced under rules that would allow amendments aimed at remedying the civil liberties problems with the three expiring provisions, or with the still more controversial Patriot expansion of National Security Letter authority, which under current law does not expire. For those just tuning in, the sunsetting Patriot provisions are:

Lone Wolf

So-called “lone wolf” authority allows non-citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored 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. Moreover, Lone Wolf blurs the traditional–and constitutionally significant–distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. 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 Wiretaps

Roving wiretap authority allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be “described” rather than identified. Courts have stressed this requirement for identification of a named target as a feature that enables criminal roving wiretaps to satisfy the “particularity” requirement of the Fourth Amendment. Patriot’s roving taps, by contrast, raise the possibility of “John Doe” 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. Given the general breadth of FISA surveillance and the broad potential scope of online investigations, John Doe warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates would be fine with making this authority permanent if it were simply modified to match the criminal authority and foreclose the possibility of “John Doe” warrants by requiring either a named individual target or a list of specific facilities to be wiretapped.

Section 215

Section 215 expanded the authority of the FISA Court to compel the production of business records or any other “tangible thing.” While previously such orders were limited to narrow classes of businesses and records, and required a showing of “specific and articulable facts” that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of “reasonable grounds” to believe records are “relevant” to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism. And the recipients of these orders are barred from Proposals to restore some of the previous checks on this power–requiring some demonstrable connection to terroris–initially received bipartisan support last year, but were torpedoed when the Justice Department objected that this limitation would interfere with a secret “sensitive collection program.” Several senators briefed on the program have expressed concern that this sweeping collection authority was being reauthorized without adequate public understanding of its true purpose.

So those are the sunsetting provisions–though a lot of the debate last year very justifiably centered on the need to reform National Security Letters, which we know to be constitutionally defective, and which have already been subject to serious abuses. One reason reform keeps getting postponed is that Congress is busy and tends not to make time for these issues until the sunset deadlines are right around the corner–at which point a reliable band of pundits and legislators imply that absolute bedlam will ensue unless every single surveillance authority is extended–meaning reform will have to wait until later, at which point it will be an emergency all over again. Once you start looking at the numbers, though, all these Chicken Littles begin to look faintly ridiculous.

The Lone Wolf provision is such an essential intelligence tool that it has never been used. Not a single time. And again, by the terms of the statute, it only applies under circumstances where a criminal wiretap warrant would already be available if Lone Wolf authority didn’t exist. Roving authority is granted by the FISA Court an average of 22 times per year, and in many (if not most) of those cases it never actually has to be used–surveillance is limited to named facilities. To put that in context, the FISA court issued 1,320 electronic surveillance orders in 2009, and that was the first time in 5 years the number fell below 2,000. So we’re talking about maybe 1 percent of FISA surveillance, which judging by internal oversight reports, is a good deal less than the portion that ends up sitting untranslated for months anyway. Similarly, there were 21 business records orders under §215 issued in 2009–and remember, that authority doesn’t disappear if this provision sunsets, it just reverts to its narrower, pre–Patriot version, where the court needs to see actual evidence that the records have some connection to a suspected terrorist. Surveys by the Inspector General’s office found no instances in which a major case development resulted from 215 information. The idea that we’d somehow be in grave danger if these provisions lapsed for a few months just doesn’t hold up, but there’s no reason Congress can’t pass a two-month extension while they consider some of the reforms already on the table, just as they did last year.

So let’s stop living in a state of perpetual panic. Some of these provisions we’d be better off without. Some, like roving wiretaps, just need minor tweaks to close loopholes for misuse. Some–I’m looking at you, National Security Letters–require substantial reform. Many of these changes ought to be common sense, and have attracted bipartisan support in the past. But let’s stop kicking the can down the road and saying we’ll debate the proper limits on the surveillance state when there’s time. It’s important enough that Congress can make time.

Patriot Act Extension Runs Into Conservative Opposition

Reports the Los Angeles Times:

A House GOP push to permanently extend expiring provisions of the Patriot Act is running into opposition from conservative and “tea party”-inspired lawmakers wary of the law’s reach into private affairs.

Congress has made a practice of kicking the Patriot Act can down the road, but it could be that the new crop of legislators isn’t inclined to go along.

Julian Sanchez has blogged here about the complexities of this government surveillance law. His podcast on the topic, released yesterday, is titled “The Patriot Act Sneaks to Renewal.” Maybe it can’t sneak through after all…

A Patriot Update

A few developments from a business meeting of the Senate Judiciary Committee held this morning. As I noted last month the new House Intelligence Chair, Rep. Mike Rogers (R-Mich.) has already introduced another one-year straight renewal without modification. Since then, Sen. Pat Leahy (D-Vt.) has introduced a bill that would renew the expiring Patriot Act surveillance provisions through 2013, but with some very basic additional safeguards and oversight requirements—many of which the Justice Department has already agreed to implement voluntarily—including most crucially added constraints and a new sunset for expanded National Security Letter powers, which have already been held at least partly unconstitutional in their current form by federal courts, and which the government’s own watchdogs have already found to be subject to widespread abuse.

Enter Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, who played a key role in killing the same mild reforms last year. She’s already introduced legislation of her own, which would provide for an extension through the end of 2013, without any modifications, of not only the provisions set to expire this year, but also the highly troubling FISA Amendments Act, which in effect legalized the Bush administration’s illicit programmatic wiretapping with an added sliver of judicial oversight. Even this was not quite enough for Sen. Chuck Grassley (R-Iowa), who announced he would introduce a bill making the expiring provisions permanent—effectively removing an important impetus to continuing oversight.

Feinstein, interestingly, purported to be theoretically supportive of Leahy’s reformist impulses, but argued that the “time crunch” created by the end-of-February sunset deadline makes this the wrong time to consider reforms. (In order to hurry things up, a Hill contact tells me, Feinstein’s bill will be fast-tracked to the floor under Senate Rule 14, circumventing the committee process.) This really makes very little sense. Leahy’s bill is essentially the same proposal reported out favorably by a bipartisan Judiciary Committee majority; the point of doing a one-year reauthorization in 2010 was supposedly to allow Congress to consider reform alternatives in the interim. Moreover, the Justice Department has already effectively agreed to accept the reforms that bill contains. If there’s nevertheless a need for further deliberation, Congress can do exactly what it did last time around and extend the sunset by a few weeks or months to allow for additional debate.

The time constraints here are wholly of Congress’ own making. And while the Leahy bill doesn’t go far enough by any means, there is just no good excuse to delay at least the beginning of needed reforms any further.

The Sun Never Sets on the PATRIOT Act

A year ago, the protracted wrangling in Congress over the re-authorization of several expiring provisions of the PATRIOT ACT made plenty of headlines. Most observers expected the sunsetting powers to be extended, but civil libertarians hoped serious and sorely needed reforms might be part of the package. The House and Senate Judiciary Committees held multiple hearings on the topic, and an array of competing reform and reauthorization bills (PDF) were proposed, adding extra safeguards (of varying stringency) to the greatly expanded surveillance powers Congress had approved in the aftermath of the 9/11 attacks.

But Congress had a full plate, and so it punted—approving a straight one-year reauthorization without any modifications at the last minute. (You’d be forgiven for not noticing: The extension passed under the heading of the “Medicare Physician Payment Reform Act.”) As I
noted in December, however, the Justice Department has promised Congress that it will voluntarily adopt some of the measures that had been floated in those reform bills—which would be a fine thing in itself, but I worried that the move seemed calculated to reduce the impetus for binding legislation.

Well, I’ve just noticed—quite serendipitously, as there doesn’t appear to have been a whisper in the press—that the new House Intelligence Committee Chair, Mike Rogers (R-Mich.), has introduced yet another one-year extension, which would push the sunset of the expiring provisions back to the end of February 2012. Given the very limited number of days Congress has in session before the current deadline, and the fact that the bill’s Republican sponsor is only seeking another year, I think it’s safe to read this as signaling an agreement across the aisle to put the issue off yet again. (I’ve asked Rogers’s office for a comment and will update this post if I hear back.)

In the absence of a major scandal, though, it’s hard to see why we should expect the incentives facing legislators to be vastly different a year from now. Heck, we’ve had a pretty big scandal involving the misuse of National Security Letter powers, but even right on the heels of the Inspector General’s report documenting those abuses, the mildest reforms proffered last year died on the vine. I’d love to be proven wrong, but I suspect this is how reining in the growth of the surveillance state becomes an item perpetually on next year’s agenda.

Good News and Bad on PATRIOT Reform

Late last week, Attorney General Eric Holder sent a letter to Senate Judiciary Committee Chair Patrick Leahy (D-VT) in which he agreed to implement an array of policies designed to check abuse of USA PATRIOT Act powers. These include more thorough record keeping and more disclosures to Congress, prompt notification of telecommunications companies when gag orders have expired, and updated retention and dissemination procedures to govern the vast quantities of information obtained using National Security Letters.

In itself, this is all to the good. But civil libertarians should pause before popping the champagne corks. Last year, the fight over the reauthorization of several expiring PATRIOT provisions opened the door to the comprehensive reform that sweeping legislation sorely needs to better balance the legitimate needs of intelligence and law enforcement against the privacy and freedom of Americans. Despite serious abuses of PATRIOT powers uncovered by the Justice Department’s Office of the Inspector General, no such major changes were made. Instead, Congress opted for a shorter-term renewal that will require another reauthorization this February—in theory allowing for the question of broader reform to be revisited in the coming months.

Many of the milder reforms proposed during the last reauthorization debate now appear to have been voluntarily adopted by Holder. Unfortunately, this may make it politically easier for legislators to push ahead with a straight reauthorization that avoids locking in those reforms via binding statutory language—and entirely bypasses the vital discussion we should be having about a more comprehensive overhaul. If that happens, it will serve to confirm the thesis of Chris Mooney’s 2004 piece in Legal Affairs, which persuasively argued that “sunset” provisions, far from serving as an effective check on expansion of government power, often make radical “temporary” measures more politically palatable, only to create a kind of policy inertia that makes it highly unlikely those measures will ever be allowed to expire.

With the loss of Sen. Russ Feingold (D-WI), who whatever his other faults has been the Senate’s most vocal opponent of our metastasizing surveillance state, the prospects for placing more than cosmetic limits on the sweeping powers granted since 2001 appear to have dimmed. If there’s any cause for optimism, it’s that the recent fuss over intrusive TSA screening procedures appear to have reminded some conservatives that they used to believe in limits on government power even when that power was deployed in the name of fighting terrorism.

And Then There Were None

The Washington Post, December 21, 2005:

The four Republican rebels – Larry E. Craig (Idaho), Chuck Hagel (Neb.), John E. Sununu (N.H.) and Lisa Murkowski (Alaska) – have joined all but two Senate Democrats in arguing that more civil liberties safeguards need to be added to the proposed renewal of the Patriot Act.

Let’s hope that some of the prospective new senators who consider themselves constitutionalists will raise their voices on issues like this.