Sept. 15, 2009 -- The Justice Department has indicated that the Obama administration is in support of renewing a pair of controversial sections of the USA Patriot Act that expire later this year. The provisions that will expire in December include Section 206, that allows "roving" wiretaps so FBI agents can tap multiple phones or computers (with court authorization) that a specific person (target) may use.
Another expiring provision, Section 215, is the so-called "library provision," which allows investigators to obtain business records with approval from the Foreign Intelligence Surveillance Court.
And the final provision which was nicknamed the "Lone Wolf" authorization, allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization.
Assistant Attorney General Ronald Weich in a letter to Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, sent yesterday, notes, "We recommend reauthorizing section 206 of the USA PATRIOT Act, which provides for roving surveillance of targets who take measures to thwart FISA [Foreign Intelligence Surveillance Act] surveillance. It has proven an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders."
Leahy has set a hearing for next Wednesday to address the issue. In his own statement, Leahy said today, "I am pleased that the Justice Department has signaled its willingness to work with Congress in addressing the expiring provisions of the USA PATRIOT Act. It is important that Congress and the executive branch work together to ensure that we protect both our national security and our civil liberties. The Judiciary Committee will hold a hearing next week to determine how we can best do this, and I look forward to hearing further from the administration and parties on all sides of this issue."
Weich's letter notes that only about 20 applications for wiretaps are filed every year. "Since the roving authority was added to FISA in 2001, the government has sought to use it in a relatively small number of cases (on average, 22 applications a year). We would be pleased to brief members or staff regarding actual numbers, along with specific case examples, in a classified setting."
Roving Wiretaps Favored by Bush and Obama
In March, FBI Director Robert S. Mueller disclosed in congressional testimony that the FBI had used the roving wiretap in terrorism investigations a total of 147 times since 2001.
Supporting legal analysis of the Patriot Act which was passed by Congress and developed by Department of Justice lawyers in the Bush administration was mentioned in the letter to Leahy. "We believe that the basic justification offered to Congress in 2001 for the roving authority remains valid today."
The letter also notes that the Obama Justice Department will support the reauthorization of the controversial business record provision in section 215 known as "the library provision."
"We also recommend reauthorizing section 215 of the USA PATRIOT Act, which allows the FISA court to compel the production of business records. The business records provision addresses a gap in intelligence collection authorities and has proven valuable in a number of contexts."
Critics of the Patriot Act protested loudly that the FBI could obtain individuals' library records under the legislation. While this was technically accurate, section 215 is much more expansive than reviewing a suspected terrorist's summer reading list, Justice argues. Section 215 allows the FBI to obtain any business record, "any tangible things," like credit card and bank statements and also allows access to medical and mental health records. The provision has been used to obtain communication and subscriber information to help set up surveillance and monitoring of computers and telephones.
Weich's letter addresses the concerns about the library provision. "At the time of the USA PATRIOT Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries. This simply has not occurred, even in the environment of heightened terrorist threat activity. The oversight provided by Congress since 2001 and the specific oversight provisions added to the statute in 2006 have helped to ensure that the authority is being used as intended."
Administration Wants Ability to Obtain Business Records
Weich's letter argues, "Based upon this operational experience, we believe that the FISA business records authority should be reauthorized. There will continue to be instances in which FBI investigators need to obtain transactional information that does not fall within the scope of authorities relating to national security letters and are operating in an environment that precludes the use of less secure criminal authorities. Many of these instances will be mundane (as they have been in the past), such as the need to obtain driver's license information that is protected by state law. Others will be more complex, such as the need to track the activities of intelligence officers through their use of certain business services."
The Justice Department also notes that the "Lone Wolf" provision has never actually been used, but it would still like to keep the authority that allows counterterrorism investigators to obtain an FISA warrant if they are not able to connect the individual to a country or a specific terrorist group.