Authority to Spy on Americans Unclear as Patriot Act Expires
House Defies White House and Renews Two of Three Expiring Provisions
By ELIZABETH GORMAN
Nov. 30, 2009—
Rushed into law by Congress just weeks after Sept. 11, 2001 three controversial provisions of the Patriot Act granting officials far-reaching surveillance and seizure powers in the name of national security, are due to expire this New Year's Eve.
Two differing bills passed by the House and Senate judiciary committees in recent weeks will have to be reconciled in Congress, but only when the Senate isn't backlogged by health care, Democratic aides told ABC News.
"This critical legislation protects our national security, as well as our civil liberties, and the clock is ticking," said Rep. Jim Sensenbrenner, R-Wisc., an author of President Bush's 2001 Patriot Act and former chairman of the House Judiciary Committee during the Bush administration.
Sensenbrenner urged the House and Senate to act quickly in reauthorizing the provisions before they expire at the end of this year.
That timing is unclear. With so few weeks left in the year and the health care debate just beginning in the Senate, it's possible that Congress will first vote for a temporary extension to prevent certain Patriot Act authorities from sunsetting, according to an aide.
With full support from the Obama administration, the Senate Judiciary Committee passed a bill last month reauthorizing the law that has in recent years sparked much controversy over rights to privacy protected under the Constitution, with some minor tweaks.
But House Democrats in the Judiciary Committee went much further reigning in executive authorities and raising the threshold of proof needed to legally seize Americans' personal records and conduct wiretaps on their phones. It also slapped on more restrictions, and required more government auditing, and reporting showing how the process could be modified to enhance civil liberties.
"We have the opportunity to fix the most extreme provisions of that law and provide a better balance," said Rep. John Conyers, Jr., D-Mich., who introduced the House bill, which allows one provision of the Patriot Act to expire.
In renewing only two of the three sunsetting provisions, the House version has defied the White House, quietly pushing Congress to totally renew its predecessor's law.
This is not a new debate. Four years ago, then Sen. Barack Obama, D-Ill., who taught constitutional law, voted down the same provisions along with all Senate Democrats, and insisted on changes to the bill that better protected libraries, limited clandestine search warrants, roving wiretaps, and FBI gag orders.
The end product was a compromised package that Sen. Obama said was far from perfect, but that was better than what was passed by counterparts in the House, which in a role reversal voted to renew President Bush's historically intrusive surveillance policies.
"This compromise does modestly improve the Patriot Act by strengthening civil liberties protections without sacrificing the tools that law enforcement needs to keep us safe," he said in a speech on the Senate floor.
If passed again as the Obama administration has signaled it wants, the next Patriot Act reauthorization won't be until 2013.
The expiring provisions of the Patriot Act are:
1. The Records provision. This allows federal investigators with a court order to compel anyone to hand over "any tangible thing" showing "relevance" to a terrorist investigation from all business, hospitals, and some libraries. According to the U.S. Attorney General's office, there have been 220 such orders issued, but no major case to date has transpired because of information procured from them.
Both the Senate and the House bills renew the provision, but remove that presumption of "relevance" so that the burden of proof falls on the government to report facts and circumstances justifying what the items sought have to do with an investigation. A higher threshold of proof is specified for library circulation records and patron lists in both bills, but the House goes further to add booksellers to that group.
2. The Roving Wiretaps provision. The provision authorizes authorities to track a target by wiretapping any multiple lines of communication without specifically naming a target or what kind of communication they're using to the FISA (Foreign Intelligence Surveillance Act) courts issuing the warrant. The FISA court grants about 22 such warrants annually, according to a government document.
The House bill renews the roving wiretaps, but puts more restrictions on the government proving an unnamed target as a specific individual to prevent dragnet operations. The Senate leaves the provision as is.
3. The Lone Wolf provision. This provision allows authorities to make use of secret surveillance orders to spy on non-Americans if there is proof that they are engaged in a terrorist activities, but not necessarily involved with a terrorist organization or foreign power. The Lone Wolf provision has never been used.
The House Judiciary Committee voted to allow the Lone Wolf provision to expire, stating that normal procedures for criminal investigations could be used instead; the Senate voted to renew it.
Perhaps more important than the expiring provisions is one that is not set to expire at all.
Acquiescing to a coalition of 20 civil libertarian groups, House Democrats used the reauthorization process as the opportunity to place tough restrictions and an expiration date on a provision concerning administration subpoenas, or national security letters (NSLs), fast becoming the central focus of this debate.
The secret letters are used by the FBI to compel third parties -- financial services such as Internet providers, travel and telephone companies -- to hand over client records like bank records, for instance, presuming they're relevant to a terrorism investigation, but without having to get a court order.
"To fail to narrow this authority would be reckless," said Michael German, formerly with the FBI and now policy counsel for ACLU's Washington legislative office.
There were more than 192,000 known NSLs that were issued by the FBI between 2003-2006, according to a government report. The FBI's 10 percent review of field office NSLs found at least 640 potential intelligence violations from 2003 through 2006, according to the Justice Department Inspector General Glenn Fine.
His office issued reports citing underreporting and "serious misuse" of the secret letters issued by the FBI to obtain personal information sometimes not covered by the law. After two reports since 2007, the number of secret letters dropped, but rose again in 2008 to 24,744 in that year alone, according to the Department of Justice.
"Where the FBI is investigating a particle person, where the FBI has reasonable suspicion a person is acting for an agent or on behalf of a foreign terrorist organization, they have robust authorities, and that is perfectly appropriate and justifiable," German told ABC News.
"But what the national security letters do is allow them [the FBI] to collect information about people they don't suspect of doing anything wrong. And that's just a bridge too far," he said.
The House agrees with the ACLU and voted to restrict the secret letters only to cases where officials can prove the suspect is a terrorist, engaged in terrorist activities, or are in contact with terrorists.
"Unless we get it right, I think we risk not just shredding our constitution which I'm not in favor of, but shredding our way of life," said Rep. Jane Harman, Ranking Member of the House Intelligence Committee.
But Rep. Jim Sensenbrenner, R-Wisc., denies that any civil liberties have been violated related to the use of any provision of the Patriot Act, and points out that the same secret letters existed before the Patriot Act was enacted to fight terrorism at home.
"The Patriot Act has been misused by some as a springboard to launch limitless allegations that are not only unsubstantiated but are false and irresponsible. The fact remains that the USA Patriot Act is vital to maintaining America's safety," he said.
"The Obama Administration's support of these reauthorizations will hopefully put an end to the myths and the hyperbole that surrounds the Patriot Act, as it is a needed piece of legislation to keep America and her citizens safe and secure," he said.
In recent weeks, the White House gave its blessing to the Senate version, co-sponsored by Judiciary Chairman Patrick J. Leahy, D-Vt., and Sen. Dianne Feinstein, D-Calif., extending all three provisions without placing as many restrictions as the House version.
"We believe these measures will promote appropriate standards, oversight, and accountability, especially with respect to how information about United States persons is retained and disseminated, without sacrificing the operational effectiveness and flexibility of the underlying tools need to protect our citizens from terrorism and to facilitate the collection of vital foreign intelligence and counterintelligence information," U.S. Attorney General Eric Holder wrote in the letter expressing strong support to Leahy and Feinstein.
The government cites the case of Najibullah Zazi, an Afghan man who is a U.S. citizen and found to have trained in al Qaeda camps, as proof that the Patriot Act should be renewed for future interceptions by the FBI. Zazi was arrested in September on charges he was planning an attack on American soil.
As for the abuse of the secret letters issued by the FBI, the Obama administration said it sees room for more oversight. U.S. Inspector General Genn A. Fine said in testimony to the Senate:
"As Congress considers reauthorizing provisions of the Patriot Act, it must ensure through continual and aggressive oversight that the FBI uses these important and intrusive investigative authorities appropriately."
Critics of President Obama accused him of flip-flopping on his position as a candidate when he voted to renew a law last year allowing the use of wiretaps and gave immunity to telecom companies that cooperated under Bush's warrantless wiretapping program, made public in 2005.