October 2, 2009 10:07PM

Misleading on PATRIOT Reauthorization

It's nice to see that some media outlets are starting to pay attention to deliberation in the Senate over the reauthorization of expiring PATRIOT Act provisions.  It's less nice when, as in this FOX News report, "paying attention" means "peddling outrageous falsehoods."  To be sure, the issue can be dauntingly complicated, but these are enormous howlers that the most elementary fact checking ought to catch. Many of the false claims appear to echo this Wall Street Journal op-ed by former attorney general Michael Mukasey, which is similarly misleading. Let's review.

First, the report begins by suggesting that there's some risk that the three sunsetting powers in question—roving wiretap authority, "lone wolf" targeting, and section 215 orders for "tangible things"—are in real jeopardy of expiring altogether. "Some Democrats," we're told, would like them to "go bye-bye." This is false. About roving wiretaps and 215 orders, there is no disagreement whatever. As I outlined in a previous post, the most aggressive reform proposal was Russ Feingold's, and he'd keep both of these with some added safeguards. The legislation that appears to be on its way to winning the support of the Judiciary Committee—including a majority of Democrats—would renew all three provisions. And that legislation would leave two of the three—the "lone wolf" and the roving wiretap authority—totally unchanged.

Second, the FOX report and the Mukasey op-ed both claim that it was because investigators lacked the ability to investigate "lone wolves" under the Foreign Intelligence Surveillance Act that the FBI was unable to target "20th hijacker" Zacarias Moussaoui. This, too, is false. I'll have a piece up at Reason early next week making the broader case against the lone wolf provision, but for the moment it's worth noting that a bipartisan Senate report investigated this claim back in 2003 and found it to be without merit. The report concluded that the FBI could have obtained a FISA warrant under existing law, but failed to do so because supervisors failed to forward relevant information along to FBI lawyers, and because they misunderstood some of FISA's key definitions and requirements. Furthermore, it notes that the FBI later obtained a criminal warrant to search Moussaoui's laptop on the basis of the exact same evidence they already had, so even in the absence of FISA authority, the search could have been conducted earlier. The problem was not that they lacked sufficient surveillance authority, but that, as the report puts it, "FBI Headquarters personnel failed miserably" in a variety of ways. Of course, it's always easier to say "we need more power" than "we screwed up." But again, only Feingold's proposal would allow this provision to expire, and it seems fairly clear that there's no real support for doing so among legislators of either party.

Third, the FOX report claims explicitly, and Mukasey's op-ed strongly implies, that "these provisions" were somehow instrumental in the investigation and arrest of suspected terror plotter Najibullah Zazi. We don't actually know that yet: investigators have said they plan to use evidence obtained under FISA, but we don't know which parts of FISA were involved, and we certainly don't have any reason to think that the reforms proposed even in Feingold's ambitious bill would have made any difference in the investigation. We know for certain that the "lone wolf" provision was not invoked—first, because the Justice Department has stated clearly that they have never used that provision, and second, because news reports suggest that Zazi is either a citizen or a permanent resident, and in either case the "lone wolf" provision would not have been available. It appears that Zazi was wiretapped, and if he was switching phones frequently to evade surveillance, investigators may have used a "roving" wiretap. The renewal legislation favored by most Democrats on the Senate Judiciary Committee would preserve that roving authority exactly as it exists now; under Feingold's proposal they would have to have "identified" Zazi at the time they got the order in order to make it eligible for roving, which it seems extremely likely that they had.

As Marcy Wheeler points out in her summary of the evidence against Zazi, it's possible that a section 215 order was used to obtain evidence that Zazi and his associates were purchasing chemicals that could be used to make a bomb. If these records were obtained after Zazi or his associates showed up on the FBI's radar, then he would have been a target of a national security investigation, and his records would be subject to seizure under all of the reform proposals. The other possibility is that Zazi first came to the FBI's attention because of these chemical purchases, because they were sending out broad requests for information about anyone who had purchased certain products. It's a slightly closer call if that was the case, but even Feingold's proposal permits orders to be issued for records that are relevant to "the activities" of suspected terrorists, if such records were needed to determine the identities of the persons involved.  Apparently these were chemicals known to have been purchased by other terror suspects plotting to make similar bombs, which sounds like it ought to provide a "reasonable basis" for believing purchases of the appropriate combination of chemicals in sufficient quantities "pertain to the activities" of a suspected terror group. In short, given what we currently know, there is no basis whatever to infer that even the most ambitious proposal to add civil liberties checks to the renewed PATRIOT powers would have created any serious obstacle to the acquisition of any of the evidence in this case.

Fourth, Mukasey's op-ed claims that proposed safeguards "turn the concept of an investigation on its head, requiring the government to submit proof at the outset of an investigation while facts are still being sought," and that they would require the government to "prove that the information sought in this record relates to a foreign power." Now, this is a fairly sloppy deployment of the word "proof": Mukasey conflates the "proof beyond a reasonable doubt" needed at the end of an investigation, when the time comes to prosecute someone, with the standard of "probable cause" that applies to search warrants. But even under the Feingold bill, "probable cause" is not the standard. A "reasonable basis" will do. Essentially, the government just needs to show some grounds for thinking that they're not engaging in a pure fishing expedition: that either the particular suspect or the "activities" in question can be reasonably linked to a terror group.

Finally—and this is trivial, but indicative of the level of regard for accuracy in the piece as a whole—text that appears onscreen during the FOX report claims that the PATRIOT Act "may be renamed later this year as the JUSTICE Act." I suppose the implication is that people who care about civil liberties are so hostile to patriotism that they can't even abide having it in the name of a law. In fact, the JUSTICE Act is the name of Feingold's proposed bill to reform PATRIOT. That bill has no real chance of passing wholesale at this point, but in any event, it would not "rename" anything.

I think it's telling that opponents of common-sense civil liberties safeguards don't seem to think they can make their case without wildly misrepresenting the facts about both investigations and the changes legislators have actually proposed. They have to make it sound as though people are trying to eliminate important investigatory powers altogether—which nobody is arguing for—because it's awfully hard to argue against reasonable and carefully crafted privacy protections if you're honest about what they actually entail. And isn't it a little rich that a network that is forever warning us that we're on the verge of descending into fascism should be so hostile to any suggestion that there ought to be some moderate limits on government surveillance? I'd have thought having a Democrat in the White House might make it acceptable to care about the scope of executive power to spy on Americans again.