To: Interested Persons
From: Timothy H. Edgar, National Security Policy Counsel
Re: Issues before the conference committee on Patriot Act reauthorization
Date: September 27, 2005
As the conference committee begins its deliberations on the final form of a bill extending Patriot Act powers, it should embrace the significant improvements in the Senate bill that will help protect civil liberties before agreeing to extend or make permanent Patriot Act powers. The committee should reject the administration's attempts to derail those modest changes, as outlined in Justice Department's letter of August 29, 2005.
Unfortunately, the letter uses many of the same misleading arguments and scare tactics that have been used for years to try to silence responsible criticism of these overbroad powers. These arguments do not rely on specific examples. They do not acknowledge the serious cost of reducing or eliminating the checks and balances that protect our basic civil liberties, and the cost in good will of a perception that the government operates without meaningful judicial oversight. The conference committee should reject this approach and embrace meaningful reforms.
Extending the Patriot Act: Very Different Approaches
The House and Senate bill offer different approaches to extending the Patriot Act. In general, the Senate bill is more protective of civil liberties than the House bill.
Neither bill reins in the most intrusive of Patriot Act powers sufficiently to protect constitutional freedoms. Neither, for example, would meaningfully reform the automatic secrecy order that attaches to secret orders for confidential records, including medical, financial, library and bookstore records. Both bills would require a new sunset date for only two provisions of the Patriot Act, making the rest of the law permanent. (The Senate bill also preserves the sunset on a major expansion of secret surveillance in section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2001; the House bill makes this provision permanent.) This approach weakens a tool for Congressional oversight that has been crucial to prompting this year's second look at this far reaching, hastily enacted law.
Nevertheless, despite the shortcomings that are common to both bills, the Senate bill represents a good faith effort to partly remedy at least some of the most severe problems with the most intrusive Patriot Act powers. For example, the Senate bill provides a meaningful statement of facts, including some connection to a suspect, for secret records orders under section 215 under a standard that is still quite favorable to the government. Likewise, the Senate bill contains a presumptive seven-day time limit for providing notice of secret searches, although it would permit the court to allow longer period than seven days under a standard that is also very favorable to the government. The Senate bill also allows an unlimited number of ninety-day extensions, and the time limit for those renewal periods could also be set for a longer period than ninety days at the court's discretion.
These reforms, while limited, are significant improvements to current law - significant enough to win the endorsement of Patriot Act reformers, including Senators Craig (R-ID), Durbin (D-IL) and Feingold (D-WI). At the same time, the reforms were acceptable to some of the Patriot Act's most ardent defenders, including Senators Kyl (R-AZ) and Sessions (R-AL). As a result, the bill won the unanimous support of the Senate - truly a remarkable example of unity given the heated national debate inspired by the Patriot Act.
The House leadership chose a different approach. Although the House bill adopted some superficial changes to Patriot Act powers, these changes did not address the central criticisms of those powers, and in a number of cases these changes actually increased the danger to civil liberties. For example, while the House bill superficially provides a ""right to challenge"" secret records requests, the right is so limited that it may actually make it more difficult to resist such requests than is the case under current law. Similarly, the bill provides for a new federal crime - punishable by up to five years in prison - for speaking out about secret records requests in violation of an automatic gag order. This provision represents an unconstitutional prior restraint on speech without meaningful judicial oversight.
Furthermore, the House bill includes a whole series of extraneous provisions, many adding new (and in many cases, duplicative) federal crimes, and more than doubling the number of terrorism death penalty offenses. These extraneous provisions - which have nothing to do with the Patriot Act - represent the bulk of the House bill and, in many cases, received no committee consideration whatsoever. As a result, many of these provisions contain serious technical flaws that are identified in the Justice Department's letter.
Finally, the House was not allowed to work its will through a democratic debate that offered members a chance to express themselves the issues most critical to Patriot Act reform. Consideration on the House bill was artificially limited by the House Rules Committee to prevent floor votes on the most meaningful reforms to Patriot Act provisions that both Republican and Democratic critics had been urging for years.
The Justice Department's Analysis: More Scare Tactics
A unanimous United States Senate agreed to a carefully-crafted bipartisan bill that makes permanent all but two provisions of the Patriot Act, and extends those two provisions for another four years, with certain modest but significant changes. The Justice Department's analysis makes the hyperbolic charge, unsupported by examples, that these modest safeguards would ""weaken"" critical counter-terrorism tools.
In fact, every new Patriot Act power is retained in the Senate version of the bill. As discussed below, the bill simply adds a few new safeguards for expanded Foreign Intelligence Surveillance Act (FISA) powers that are weaker than the analogous safeguards available in criminal investigations. Despite the fact that the Justice Department already must comply with these safeguards in criminal investigations, the Justice Department does not cite any examples of where such safeguards impeded a criminal investigation. Such safeguards are, however, critical to provide checks on those powers to help ensure civil liberties are not sacrificed.
The ""Patriot Act Abuses"" Issue
The Justice Department's letter repeats the canard that there have been no abuses of the Patriot Act. However, the letter uses the term ""verified abuses"" because it can no longer accurately claim, as the Justice Department once did, that there have been no ""reported abuses"" of the Patriot Act. The ACLU has detailed numerous abuses of the Patriot Act. For example, the ACLU explained the misuse of expanded secret search powers in the case of Brandon Mayfield, an Portland, Oregon attorney wrongly accused of involvement in the Madrid bombings of 2004. The Justice Department has apologized to Mr. Mayfield for his ordeal.
The most recent report of the Justice Department's Office of Inspector General (OIG), cited in the Attorney General's letter, far from showing that there have been no abuses of the Patriot Act, confirms that the Brandon Mayfield case is still under investigation. The report explains that the OIG ""continues an investigation of the FBI's conduct"" in connection with the Brandon Mayfield case. As the Attorney General acknowledged in testimony before the Senate Judiciary Committee, in the Brandon Mayfield case, the FBI repeatedly used a secret search power that involved two provisions of the Patriot Act - section 218 and section 207.
As a result, it is, at best, highly misleading for the Justice Department to claim that there have been no ""verified abuses"" of the Patriot Act. The Department's own Inspector General is actively investigating a very embarrassing episode in which an innocent man was wrongly imprisoned for weeks following repeated secret searches of his home using expanded Patriot Act powers. At a minimum, the Justice Department letter should have disclosed that fact.
The Justice Department also fails to acknowledge that its Inspector General has not been charged with a comprehensive review of Patriot Act secret surveillance powers, but relies on complaints that are filed with its office about Justice Department misconduct. Since secret surveillance is secret, members of the public - who do not know if their homes or offices have been secretly searched or if their records have been secretly obtained -cannot be expected to report any abuses of those powers to the Inspector General.
Specific reforms of the Patriot Act
Section 215: Secret Court Orders for Private Records, Including Library, Medical, Financial Records and other ""Tangible Things."" Section 215 of the Patriot Act expanded the scope of secret orders for records available under FISA and reduced the showing required to get such an order for sensitive personal records in ways that make it harder to protect the privacy of ordinary, law abiding Americans.
The Justice Department objects to the significant improvements to section 215 made by the Senate bill. Its objections fail to acknowledge the important distinction between criminal investigations and the secret, wide-ranging intelligence investigations in which orders under section 215 may be used.
National security investigations are not limited to gathering information about criminal activity. Instead, they are intelligence investigations designed to collect information the government decides is needed to prevent - ""to protect against"" - the threat of terrorism or espionage. They pose greater risks for civil liberties because they potentially involve secretly gathering information about lawful political or religious activities that federal agents believe may be relevant to the actions of a foreign government or foreign political organization (including a terrorist group).
Indeed, Deputy Attorney General Comey candidly acknowledged in testimony before the House Permanent Select Committee on Intelligence on May 11, 2005, that the only occasion on which the Justice Department would likely use a FISA order for records, instead of a criminal subpoena, is when the government has no ""criminal hook"" for its demand for private information - in other words, when the information is not relevant to any crime.
The traditional limit on national security investigations is the focus on investigating foreign powers or agents of foreign powers. Indeed, the ""foreign power"" standard is really the only meaningful substantive limit for non-criminal investigations given the astonishing breadth of information a government agent might decide is needed for intelligence reasons. The standard provides a meaningful limit that is a substitute for the lack of any requirement that information be relevant to criminal activity.
Section 215 of the Patriot Act swept away this limit. Section 215 allows the government to obtain any records, e.g., library and bookseller records, medical records, genetic information, membership lists of organizations, and confidential records of refugee service organizations, as well as any other ""tangible things"" with a secret order from the FISA court. The order is no longer based on any suspicion the records relate to a foreign power, but is based merely on a certification by the government that the records are ""sought for"" a national security investigation. The judge is required to issue the order. The order contains an automatic and permanent gag order.
Although such demands never required probable cause, they did require, prior to the Patriot Act, ""specific and articulable facts giving reason to believe"" the records pertain to an ""agent of a foreign power."" The Patriot Act removed that standard. As a result, a previously obscure and rarely used power can now be used far more widely to obtain many more records of American citizens and lawful residents. Because the requirement of individual suspicion has been repealed, section 215 can now be used to obtain entire databases of private information for ""data mining"" purposes - using computer software to tag law abiding Americans as terrorist suspects based on a computer algorithm.
Section 215 is the subject of a court challenge by the ACLU. See Muslim Community Association of Ann Arbor v. Ashcroft, No. 03-72913 (E.D. Mich.). The district court has not yet issued a decision in the Michigan case.
FISA records demands can be used to obtain sensitive records relating to the exercise of First Amendment rights. A FISA record demand could be used to obtain a list of the books or magazines someone purchases or borrows from the library. A FISA record demand could be used to obtain the membership list of a controversial political or religious organization.
While FISA records demands cannot be issued in an investigation of a United States citizen or lawful permanent resident if the investigation is based ""solely"" on First Amendment activities, this provides little protection. An investigation is rarely, if ever, based ""solely"" on any one factor; investigations based in large part, but not solely, on constitutionally protected speech or association are implicitly allowed. An investigation of a temporary resident can be based ""solely"" on First Amendment activities, and such an investigation of a foreign visitor may involve obtaining records pertaining to a United States citizen. For example, an investigation based solely on the First Amendment activities of an international student could involve a demand for the confidential records of a student political group that includes United States citizens or permanent residents.
The expanded scope and broader use of FISA records demands raises other constitutional problems with the statute under both the First Amendment and the Fourth Amendment. FISA records demands contain no explicit right to file a motion to quash the demand before a court on the ground that the demand is unreasonable or seeks privileged information. FISA records demands also bar the recipient from disclosing that the demand has been issued. This permanent secrecy order is imposed automatically, in every case, without any review by the judge, without any express right to challenge.
The Senate bill does not restore the requirement of ""specific and articulable facts giving reason to believe"" the records pertain to an ""agent of a foreign power"" for FISA records demands. Instead, it would substitute a standard that is considerably more favorable to the government - that the government submit a statement of facts showing that the records are 1) relevant to the investigation, and 2) have some connection to an agent of a foreign power, the activities of a suspected agent, or a person (including an innocent person) in contact with a suspected agent.
The House bill, by contrast, would include no requirement of any nexus to a suspect, leaving in place the essentially standardless ""relevance"" test. Because the House bill requires no statement showing a connection to a specific suspect under investigation, the standard of relevance does not meaningfully protect civil liberties.
The Senate bill standard requiring a connection to a suspect is also critical to enforcing the statutory prohibition on investigation of First Amendment activities. The Senate bill's requirement of statement of facts showing both relevance and a connection to the suspect under investigation will help the court in determining whether the investigation is really a ruse for spying on First Amendment activity unconnected to the actions of an international terrorist group, foreign government, or other hostile foreign power.
In addition, the Senate bill makes explicit the right to file a motion to quash the records demands on the same basis as a grand jury subpoena. These would include records demands that are unreasonable, contrary to law, or seek privileged information. The House bill, by contrast, only would allow a challenge to question the ""legality"" of the order, a standard so narrow it offers only the illusion of a right to challenge.
The letter does not persuasively explain why a right to challenge a secret order for records in a foreign intelligence case should be artificially limited only to issues of ""legality."" The standard for challenging an ordinary subpoena is significantly broader and would allow, for example, a psychiatrist to object to producing privileged patient records, or a business to respond to an unreasonable demand. The Justice Department has previously said it believes recipients of section 215 orders should be given the opportunity, like recipients of subpoenas, to file a challenge. This will provide little protection if the grounds for such a challenge are so narrow that a challenge would never succeed.
Unfortunately, neither bill would set adequate limits on the secrecy order that can be meaningfully challenged by the recipient of a records demand. While the court is given the power to hear challenges to the order, it must accept as ""conclusive"" the government's certification that disclosure would harm the national security. The court would not be able to independently evaluate whether arguments for such a secrecy order are supported by specific facts that justify the prior restraint on speech the secrecy order imposes - a permanent prior restraint.
Finally, the Justice Department letter raises troubling new questions about a reform that it had earlier endorsed and that appears in both the House and Senate bills - the right to consult counsel to obtain advice about either complying with or challenging a business records order. While the Justice Department concedes the obvious - that the right to counsel is both needed and fundamental - the letter raises new barriers by urging that the right to consult counsel should be restricted only to ""pre-cleared"" counsel.
The right to consult an attorney is not meaningful unless it is an attorney of one's choice - not an attorney ""pre-cleared"" by the government. Such barriers will also, as a practical matter, deprive many individuals and small businesses of representation, because not many attorneys outside a few national security specialists in Washington, DC are likely to bother to become ""pre-cleared"" to appear before the FISA court.
Despite these shortcomings, the Senate bill offers significant improvements to the law. The Justice Department objects to these changes, but does not explain why it needs a power to obtain personal records that are not connected to any suspected terrorist or spy (or to a person in contact with a suspect). The Justice Department had objected to earlier proposals to restore the previous standard requiring records to ""pertain to"" a suspected agent of a foreign power, claiming such authority might not extend to, for example, the roommate of a terrorist suspect. The Senate language addresses this concern directly, allowing records to be obtained of a person ""in contact with"" a suspected agent of a foreign power. The Justice Department letter does not explain why this is not enough.
Section 505: ""National Security Letters"" For Certain Records Without Any Court Approval. Section 505 of the Patriot Act expanded the FBI's power to obtain some records in national security investigations without any court approval at all. While the Senate bill does include an express right to challenge a national security letter, it includes very troubling language that would require a court to accept as ""conclusive"" the government's certification that secrecy is required by national security. The House bill also includes this language and would make this troubling provision even worse by adding new criminal penalties to violating the gag provision.
Unlike records orders from the FISA court under section 215, these ""national security letters"" do not apply to all records or ""tangible things."" Rather they can be used to obtain (1) a wide array of records from so-called ""financial institutions"" (a broadly-defined term that includes pawnshops, realtors, car dealerships, casinos, and post offices), (2) credit reports, and (3) telephone, Internet and other communications billing or transactional records. A national security letter could be used to monitor use of a computer at a library or Internet café under the government's theory that providing Internet access (even for free) makes an institution a ""communications service provider"" under the law.[1]
Also unlike orders under section 215, national security letters can be issued simply on the FBI's own assertion to the recipient that they are needed for an investigation. They also contain an automatic and permanent gag order. National security letters suffer from many of the same flaws as orders under section 215. They do not offer the recipient any express right to challenge the order. They contain an automatic and permanent secrecy provision that bars the records holder from revealing the demand to anyone, again with no right to challenge. As a result of section 505 of the Patriot Act, the FBI can issue a national security letter without any statement that the records sought pertain to a foreign power or agent of a foreign power.
In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a federal district court ruled against a ""national security letter"" records power expanded by the Patriot Act. Judge Marrero agreed with the ACLU that the failure to provide any explicit right for a recipient to challenge a national security letter search order violated the Fourth Amendment and that the automatic secrecy rule violated the First Amendment. The district court ruling in Doe v. Ashcroft makes clear all these problems are severe enough to invalidate the entire national security letter statute - not just the portions amended by the Patriot Act. The case is now on appeal before the United States Court of Appeals for the Second Circuit.[2]
A second federal district court ruled recently against the constitutionality of the NSL statute as applied to a member of the American Library Association in Doe v. Gonzales, No. #:05-cv-1256 (D. Conn. Sept. 9, 2005). The district court ruled that the government's arguments to force silence on the recipient of a national security letter demand were not compelling and could not justify a prior restraint on the institution's right to speak about this power and its concerns about the privacy of the records sought - particularly at a time when Congress is considering whether to reform this law. The district court's decision has also been appealed, and the recipient remains gagged as a stay of the decision, pending appeal, remains in effect.
The Justice Department letter acknowledges that the failure to include a right to challenge was a serious flaw in the original statute. Unfortunately, its comments on the proposed reforms to national security letters in the House and Senate bills would, if accepted, prevent the right to challenge from being meaningful.
Both the House and Senate bill provide explicit authority for the government to seek enforcement of a national security letter in court, and for a recipient to challenge a national security letter. The Senate bill would explicitly provide that DOJ may seek to ""enforce"" an NSL by going to court. (The current statute provides that a recipient must comply with an NSL, but does not explain what happens if the recipient does not comply).
The House bill specifically requires the judge to impose contempt penalties on the recipient if DOJ seeks enforcement. DOJ endorses this approach, objecting to the Senate bill's failure to specifically require contempt penalties. In fact, leaving the sanctions to the discretion of the judge is entirely appropriate. Providing a specific, mandatory remedy could transform this already troubling power into what amounts to a secret administrative subpoena for intelligence-gathering about innocent Americans. Providing that a judge ""may"" enforce the demand provides more judicial discretion, and more protection for civil liberties from abuse of this power.
DOJ also objects to giving recipients the right to file a challenge in any appropriate United States district court, preferring instead to limit such challenges. It does not, however, urge that the government should be similarly limited in choosing a court to enforce a national security letter. The letter does not explain why existing jurisdiction and venue rules that apply to federal court challenges are not sufficient to prevent forum shopping by either the recipient or the government.
DOJ objects to giving the court discretion to determine what orders to issue, in the course of litigating a challenge to a national security letter, to protect classified information. In fact, the current law - unlike the House bill -- leaves that issue to be resolved by the judge. In the ACLU's current challenges to national security letters, the government has been extremely aggressive in resisting efforts by the ACLU to lift secrecy orders about even the most basic of information (such as the name of the client, which is still secret). The DOJ does not provide any explanation of why federal judges should not be trusted to make these decisions. Excessive secrecy frustrates the ability of the courts to hear these important challenges in the open, giving the American people confidence that these challenges will protect their rights against any excessive secret surveillance.
Finally, DOJ urges adoption of the House bill's language creating a new federal crime of violating the non-disclosure provisions of a national security letter, punishable by up to five years in prison. The non-disclosure provisions attach automatically to every NSL, without any individual determination by a court (or anyone else) that the need for secrecy outweighs the right of a recipient to speak out against the government's demands, ever. The House bill would seriously exacerbate the problems of this already unconstitutional prior restraint on speech (imposed by the Executive Branch, without any factual showing) by imposing new criminal penalties. These provisions should clearly be rejected.
Section 213: Delayed Notice ""Sneak and Peek"" Search Warrants. Section 213 of the Patriot Act represents the first time Congress has expressly authorized searches of private homes and offices in ordinary cases not involving foreign intelligence without simultaneous notice to the owner. Section 213 allows the government to get a search warrant to enter homes and businesses secretly, with notice delayed for a potentially indefinite ""reasonable time.""
Because it allows secret searches of homes and offices, section 213 has been one of the most controversial sections of the Patriot Act. It is used mainly outside terrorism cases. In a letter dated July 5, 2005 to Rep. Scott, a member of the House Judiciary Committee, Assistant Attorney General William Moschella revealed that 117 of 153 uses of this authority occurred outside terrorism cases - in other words, even by the DOJ's own account, 88% of secret criminal searches occur in cases of ordinary crime.
The Justice Department letter argues, misleadingly, that section 213 merely codified an existing law enforcement practice that allowed government agents to secretly search homes and business by allowing a delay in the notice that is normally required under federal law. In fact, prior to the Patriot Act, the governing law said nothing at all about delays - it simply required notice of all searches - leaving the authority to seek a delay questionable, which is why the Justice Department sought legislation.
Federal appeals courts that approved sneak and peek warrants have determined that the Constitution requires notice to be given in a ""reasonable, but short,"" period of time - generally within seven days. The Justice Department letter says it does not object to setting a ""presumptive limit"" for notice in principle. It does, however, object to the Senate bill's seven-day limit - even though this is precisely the ""presumptive limit"" set by the case law the Justice Department says section 213 was intended to codify.
The Justice Department's letter sets up a false choice in its effort to criticize the seven-day rule. The letter argues that a seven day limit would ""force investigators to choose between either conducting a search and having to give notice prematurely . . . or else not conducting a search."" This is not true, because the Senate bill's seven-day rule is only a presumption. The bill allows the judge both to set a longer initial period for delay ""if the facts of the case justify"" a longer period and to extend the period of delay for an unlimited number of additional periods of up to 90 days each. The judge may also set a deadline of longer than 90 days ""if the facts of the case"" warrant a longer renewal period.
Unfortunately, both the Senate and House bills do not substantially correct the very broad circumstances under which the government may secretly search homes and businesses. Senators seeking reform of the Patriot Act agree that secret searches should be allowed for specific reasons such as the possibility of physical harm to an individual, loss of evidence, flight from prosecution, or witness intimidation. The House and Senate bills, however, would also preserve the troubling ""catch-all"" provision that permits secret searches if providing notice would ""seriously jeopardize"" an investigation into any federal crime - a provision that facilitates the use of this power in ordinary, non-terrorism investigations.
The Justice Department's real objection is not to the seven or ninety day limits, which are presumptive in any event, but to judicial oversight. DOJ seemingly wants power to delay notice