ACLU Memo to Interested Persons Regarding Analysis of Senate Intelligence Committee Patriot Act Reauthorization Bill

To: Interested Persons

From: Timothy H. Edgar
National Security Policy Counsel
Lisa Graves
Senior Counsel for Legislative Strategy

Date: May 18, 2005

Re: Analysis of Senate Intelligence Committee Patriot Act reauthorization bill

The Senate Select Committee on Intelligence has announced plans to mark up, in a secret session closed to the press and public, legislation to reauthorize the expiring provisions of the USA PATRIOT Act. The bill that the Senate is planning to consider goes further, however, and significantly expands a number of Patriot Act powers.

The expansions the Senate Intelligence Committee are considering include proposals, such as allowing the FBI to seize records in terrorism cases with no prior court review, that have been repeated rejected ever since they first appeared in draft Department of Justice (DOJ) legislation that became known as “”Patriot Act II.””

These expansions are being considered despite the fact that the Senate Intelligence Committee held only one public hearing on the Patriot Act. The primary jurisdiction over the Patriot Act lies with the judiciary committees of the House and Senate, which have held multiple hearings. The judiciary committees have yet to draft legislation, but members on both sides of the aisle have expressed concerns about specific provisions of the Patriot Act they believe need further amendment.

The Senate Intelligence Committee’s planned mark-up of legislation over which another committee is primarily responsible, and which takes a very different approach, is likely to complicate Congress’s consideration of these difficult issues. By making all the Patriot Act permanent, the bill would frustrate Congress’s ability to use the leverage of the sunsets to obtain cooperation in its needed oversight efforts.

Furthermore, the bill fails to include any of the sensible safeguards offered by a bipartisan group of Senators, lead by original co-sponsors Larry Craig (R-ID), John Sununu (R-NH), Lisa Murkowsky (R-AK), Dick Durbin (D-IL), Ken Salazar (D-CO), and Russ Feingold (D-WI), in the Security and Freedom Enhancement (SAFE) Act, S. 737.

The Senate Intelligence Committee’s proposed legislation would exacerbate existing problems with Patriot Act powers, rather than correct them, and would further erode fundamental checks and balances that protect the privacy of ordinary Americans. In particular, the bill:

· Makes permanent Patriot Act powers without safeguards. The bill makes permanent, with one exception, all the expiring provisions of the Patriot Act. The only exception, section 223, protects privacy by giving victims of unlawful government surveillance a court remedy. The bill would allow that section to expire. The bill leaves out incorporate additional checks and balances into Patriot Act powers – for example, by adding sensible privacy safeguards into FISA roving wiretaps that already apply in criminal cases – proposed in the SAFE Act and suggested at the only public hearing the SSCI held on the Patriot Act. The bill also repeals the sunset on new “”lone wolf”” FISA surveillance authority – i.e., surveillance of suspects without probable cause connecting the suspect to a foreign government or international terrorism group – without any additional safeguards.

· Does not provide adequate safeguards to protect library and other private records. The bill’s only modifications to a Patriot Act substantive power are that (1) a recipient of a FISA records search order (Patriot Act section 215) is permitted to consult with an attorney or other person necessary to comply with the request, and (2) the standard for issuing an order is explicitly made “relevant to” rather than “sought for.” There is also Congressional reporting on library, medical, and gun purchaser records, and a minimization requirement. No explicit right to challenge the records search order, or to challenge the gag order, is provided, even though multiple witnesses from the Department of Justice have stated that they would agree to such amendments.

· Eliminates prior court review of FBI library and other private records demands for intelligence gathering purposes. Under the guise of authorizing so-called “”administrative subpoenas,”” the bill creates a new power for the FBI to obtain library and other private records without even the review of the Foreign Intelligence Surveillance Court. The bill does this even though the Justice Department and Patriot Act defenders have constantly pointed to this existing court review (which is inadequate because the review is based on a rubber-stamp standard) in defense of the existing Patriot Act FISA records power. The new records snooping power could be used to obtain all tangible things, including library records, business records, medical records, etc. The new power is based on the same standard as the existing section 215 power, but without the requirement of prior court review, making any modifications to section 215 less meaningful since the government can simply use the new power instead.

· Strikes an existing First Amendment safeguard for records search powers. Under section 215 of the Patriot Act, where an application for records is made under FISA, there is an express proviso that “such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” This safeguard is inadequate, but DOJ has pointed to it on countless occasions in defense of the Patriot Act. The Senate Intelligence Bill deletes this safeguard in paragraph (a) of section 215, which applies to each records request. The same limit is included in a paragraph (b), and applies to the entire investigation to which the records relate. The effect of this change appears to be that while the entire investigation of international terrorism or clandestine intelligence activities may not be based solely on a the First Amendment activities of a United States citizen or lawful permanent resident, particular FISA records search demands may be based solely on First Amendment activities if they are relevant to an investigation which is also based on something else.

· Further expands time limits for FISA surveillance. The Senate Intelligence Committee bill significantly expands the amount of time some FISA surveillance authorities remain in effect (already greatly expanded by Patriot Act section 207, which the bill makes permanent), further minimizing judicial review of this rapidly-expanding secret form of government surveillance.

· Exacerbates using FISA as “”end-run”” around stricter safeguards for criminal surveillance. The bill further exacerbates the danger of using FISA to evade criminal probable cause by providing that FISA secret searches and surveillance (such as the secret search of Brandon Mayfield’s home) can be initiated for the sole purpose of criminal prosecution for certain crimes, such as terrorism and espionage. Currently, the acquisition of foreign intelligence must be a “significant” purpose. This change is described as a codification of the FISA Court of Review’s decision upholding section 218 of the Patriot Act (which the bill also makes permanent), but it appears to go significantly beyond that decision. In particular, the bill provides express statutory authorization for a search, without probable cause of crime, for the sole purpose of gathering evidence for a criminal prosecution and, as a result, is plainly unconstitutional.

· Creates new statutory authority for intelligence investigators to track mail of ordinary citizens. The bill adds an entire new section to FISA on “mail covers” which allows intelligence investigators to track, without probable cause, the outside of any sealed mail sent or received or the contents of any unsealed mail. The authors say this is a codification of an existing regulatory power, but this rationale has been the excuse for virtually every new power added to FISA surveillance since its enactment (e.g., physical searches). FISA was originally intended to provide some check on electronic surveillance for national security purposes, instead of criminal investigations. FISA is not necessarily based on any evidence of criminal wrongdoing.

· Expands greatly the amount of information obtained without probable cause through Internet surveillance. The bill expands substantially the amount of information that can be obtained, with a court order but without probable cause, from surveillance of so-called “routing information” through the Internet (pen registers and trap and trace devices). Pen registers and trap and trace device capture information like telephone numbers dialed or received, the header of an e-mail, or the web address of a web site or web page viewed. They are based on a rubber-stamp standard of relevance, rather than any individual suspicion. The bill would require, for FISA pen registers and trap and trace devices, a host of additional information to be supplied by the service provider on this rubber stamp standard, including: name, address, telephone number or IP address of the device, how long the subscriber has used the services, method of payment (including credit card numbers), and the periods of the subscriber’s usage.