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Revised ACLU Interested Person's Memo on the Security and Freedom Ensured (SAFE) Act of 2003 (S. 1709/H.R. 3352) Which Provides Safeguards to Key Provisions of the USA Patriot Act

Document Date: June 16, 2004

The bipartisan Security And Freedom Ensured (SAFE) Act of 2003 (S. 1709 and H.R. 3352) is a measured, informed response that adds safeguards to key provisions of the USA PATRIOT Act that threaten fundamental American civil liberties. These safeguards, including enhanced judicial oversight for these provisions, are needed to prevent misuse of these intrusive powers.

Surveillance powers amended by the SAFE Act include roving wiretaps in intelligence investigations, searches of library and other personal records, and “”sneak and peek”” warrants. The SAFE Act also adds nationwide search warrants and amendments to “”national security letters”” to the sunset provision to ensure meaningful review by 2005. Finally, the House version of the SAFE Act (H.R. 3352) amends the definition of “”domestic terrorism”” so that it covers serious crimes and not the civil disobedience tactics of certain protest groups, such as Operation Rescue, People for the Ethical Treatment of Animals (PETA) or Greenpeace.

The Bush Administration’s opposition to the SAFE Act is based on a misleading campaign to bolster the PATRIOT Act and tear down even thoughtful and responsible criticism of the law from both the left and the right. Far from repealing any provision of the USA PATRIOT Act, the SAFE Act preserves PATRIOT Act surveillance powers while amending them to restore meaningful judicial and Congressional oversight.

The Bush Administration does not point to any real-life terrorism case (or indeed any case) where the prudent judicial oversight that the SAFE Act adds to PATRIOT Act surveillance powers would actually have impeded an investigation. Instead, the Administration mischaracterizes the provisions of the SAFE Act that add judicial oversight to PATRIOT Act powers as “”repealing”” parts of the PATRIOT Act. This is simply false, and is part of an effort to unfairly characterize supporters of the legislation by misleading the public about what the SAFE Act does.

The Bush Administration has also stated that the PATRIOT Act has not been abused, and therefore there is no need for any amendments. The Administration’s argument is deeply flawed.

  • First, the PATRIOT Act has been abused. For example, the travel records of almost 300,000 visitors to Las Vegas were obtained by the FBI over the 2003-2004 holidays, despite the lack of any specific intelligence targeting Las Vegas or linking any particular visitor to terrorism. These records were reportedly obtained through the use of a broadened “”national security letter”” provision that allows the seizure of such records.
  • Second, the potential for future abuse is certainly a valid reason for strengthening oversight of intrusive powers regardless of whether the powers have already resulted in abuses. The Founding Fathers did not wait for the new federal government to abuse its powers before passing the Bill of Rights.
  • Third, because the provisions of the PATRIOT Act that supporters of the SAFE Act propose to amend involve secret surveillance powers, it is hardly surprising that publicly-available information about the use (and possible misuse or abuse) of those powers is scanty. Use of the government surveillance powers that the SAFE Act seeks to amend are, in some cases, classified and contain “”gag provisions”” preventing the target of certain demands from informing anyone about them.
  • Fourth, the lack of important information about the use of the PATRIOT Act has been seriously exacerbated by an unusually secretive Administration. Administration officials have been repeatedly rebuked by members of Congress for failing to provide complete and timely answers to basic questions about its use of the PATRIOT Act. It has also refused to provide responsive answers to the ACLU’s own Freedom of Information Act requests on PATRIOT Act powers.
  • Fifth, in areas in which the Administration’s civil liberties record is not or is no longer cloaked in secrecy – such as, for example, its abuse (and, in some cases, torture) of Iraqi prisoners at Abu Ghraib prison or its haphazard treatment of domestic immigration detainees after September 11 – there have been serious, documented abuses.
  • Finally, there is no doubt that the PATRIOT Act has certainly been overused – for cases not involving terrorism – as a matter of Justice Department policy.

The SAFE Act narrows key PATRIOT Act provisions to enhance judicial and Congressional oversight and provides needed safeguards to prevent misuse or abuse of these powers.

Roving wiretaps. Prior to the passage of the USA PATRIOT Act, the government could obtain an electronic surveillance order of a suspected international terrorist either by obtaining a criminal wiretap order based on probable cause of criminal activity,[1] or by obtaining an intelligence wiretap order under the Foreign Intelligence Surveillance Act (FISA).

“”Roving wiretaps,”” which permit the government to conduct surveillance without obtaining a new court order when the suspect changes from one facility (usually a telephone) to another, were available for suspected terrorists in criminal terrorism investigations. To obtain a roving wiretap in a criminal investigation, the government has to specify a target and the person conducting the surveillance has to “”ascertain”” that the target is using the facility.[2]

Section 209 of the USA PATRIOT Act made roving wiretaps available in intelligence (FISA) investigations. However, the ascertainment requirement for roving wiretaps in criminal investigations – which ensures the target is actually using the telephone the government is tapping – was not included. As a result, the government could easily listen into conversations of entirely innocent people simply because it supposed, wrongly, that a target might be using that telephone. The danger of intercepting innocent conversations is compounded in intelligence investigations, which are not limited to targets who are necessarily suspected of any criminal activity.

Section 314(a)(2) of the Intelligence Authorization Act for FY2002, passed shortly after the USA PATRIOT Act, compounded the problem by creating what was, until then, an entirely unknown surveillance power – the “”John Doe”” roving wiretap. A roving wiretap, in theory, follows a target rather than a particular facility or telephone. However, because of the Intelligence Act’s amendment, the government may now, for the first time, obtain a wiretap order without specifying either the telephone or the target. As a result, the government can use such a court order to listen into any telephone if it believes an unknown suspect might be using it.

The Bush Administration attempts to defend this entirely novel type of wiretap – and escape the “”John Doe”” roving wiretap moniker – by noting that the order still requires the government to provide a physical description of the unknown suspect. The Administration fails to acknowledge the obvious potential for invasion of privacy in a wiretap order that does not apply to a particular telephone, or even a particular person, but lets the government listen in to any telephone the government thinks might be used by a person that happens to meet the physical description of some unknown suspect.

Importantly, the government must specify the “”identity”” of the target – not necessarily the target’s real name. Justice Department officials have long interpreted this requirement of the criminal roving wiretap statute not to require knowledge of the target’s true name. For example, a roving wiretap order could be granted if the government knew of a suspect only by an alias.

In sum, the SAFE Act permits roving wiretaps in intelligence investigations, but adds two safeguards for such wiretaps that are already required for criminal roving wiretaps – that the government specify the target and ascertain the target is actually using the facility.

Wiretaps are the most intrusive form of surveillance known to the law. It is not asking too much to require the government, when it seeks a surveillance order than can jump from telephone to telephone, that it at least specify whom the order is supposed to be following and ascertain that the target is using that telephone or other facility.

FISA effectively prevents the public from knowing whether the obvious potential for abuse in a broadly-written roving wiretap law has actually occurred. The scanty available evidence indicates an explosion in FISA surveillance that is suggestive of potential abuse.

FISA requires annual reports to the Congress, but the only publicly-reported information is the aggregate number of orders for all types of surveillance (electronic surveillance orders, physical searches, and records demands) that were sought and approved by the Foreign Intelligence Surveillance Court (FISC). According to these public reports, the PATRIOT Act’s amendments have triggered an explosion in FISA surveillance, increasing 85% in two years. Last year, for the first time in history, more intelligence eavesdropping orders were authorized by one court, the FISA court, than was authorized by every other state or federal court in the United States, combined.

The more detailed reports to the Congress that describe this surveillance are classified. Members of Congress who agree to sign nondisclosure agreements have access to classified FISA reports, as do staff of the House and Senate intelligence committees. The target of a FISA order (such as a roving wiretap) will only know that the government has been listening to their conversations if the government seeks to use the information in court.

The government should make enough information publicly available to show whether the law is being used properly – that it is not being used to circumvent the stricter safeguards of criminal wiretap laws, that warrant applications are proper, and that roving wiretaps without criminal safeguards have not resulted in the widespread interception of innocent conversations.

“”Sneak and peek”” warrants. The Bush Administration fails to acknowledge that, prior to passage of the USA PATRIOT Act, there was no statutory authority for the practice of issuing “”sneak and peek”” warrants – criminal search warrants where notice of the execution of the warrant was delayed. The Federal Rules of Criminal Procedure – which governs the procedure for issuing search warrants – provided no express exception to the rule requiring service of warrants at the time a search was conducted.

While some courts had approved the practice in limited circumstances, two federal circuit courts of appeals that ruled on sneak and peek warrants prior to 9/11 had done so only pursuant to limitations that were swept away by the USA PATRIOT Act. For example, these courts had imposed a presumptive seven-day time limit for the delay.[3] The Supreme Court had yet to decide whether sneak and peek warrants were authorized by statute or the Constitution (except in the specific context of electronic surveillance which is authorized by statute).[4] In its most recent pronouncement on the subject, the Supreme Court, in an opinion written by Justice Thomas, held that the principle requiring notice for the execution of a warrant (often called the “”knock and announce”” rule) is not merely a common law principle, but is a constitutional rule based on the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927 (1995).

The USA PATRIOT Act differs from prior law in that it does not include any specific time limit, allowing a delay of notice to be extended for any “”reasonable”” time period. The Act also authorizes such searches not only in specific instances, but whenever the government shows notice would “”seriously jeopardize”” a prosecution or “”unduly delay”” a trial.

The SAFE Act merely limits the reasons for “”sneak and peek”” warrants to three specific circumstances – that notice would cause (1) the life or physical safety of a person (such as a witness) to be put in danger, (2) flight from prosecution, or (3) destruction of evidence. The Bush Administration simply mischaracterizes the SAFE Act when it claims it would prohibit a judge from approving a delay if notice would allow a suspect’s “”associates to go into hiding, flee, change their plans, or even accelerate their plots.”” Clearly, the SAFE Act standard would permit a delay if the government could show any of these things.

Finally, the Bush Administration continues to rely on hypothetical, rather than real-life, examples of a sneak and peek search involving a suspected terrorist. While the Justice Department has asserted widespread use of “”sneak and peek”” search warrants in ordinary criminal cases, the Department still has not provided even one example of how such a warrant has been used in any terrorism case – much less an example of a “”sneak and peek”” warrant in a terrorism case that could not have been obtained under stricter standards.

The Bush Administration also fails to acknowledge that the government can obtain an intelligence search warrant under FISA – which is always secret – for a physical search involving a suspected international terrorist, even where the SAFE Act’s standards for criminal “”sneak and peek”” searches could not be met.

As a result, it is clear that “”sneak and peek”” searches are primarily an investigative power for common crimes (not terrorism), and it is not surprising that the examples the government has used involve common crimes. Sneak and peek warrants are becoming increasingly common. More than one year ago, in May 2003, the Justice Department reported that sneak and peek searches were sought dozens of times, with notifications delayed for months and extensions of delays sought more than 200 times.[5] The number today is undoubtedly much higher.

Sneak and peek warrants are among the powers the Justice Department is actively encouraging its investigators to use broadly. In an employee training seminar in 2003, one DOJ guide made this clear: “”We all know that the USA Patriot Act provided weapons for the war on terrorism. But do you know how it affects the war on crime as well?””

Searches of Library and Other Personal Records. Prior to passage of the USA PATRIOT Act, FISA records searches were limited to certain (generally travel-related) business records of a suspected foreign agent. Section 215 of the USA PATRIOT Act expanded this power to include any and all “”tangible things,”” including library records, medical records, genetic information, membership lists of organizations, and other sensitive records and eliminated the requirement of individual suspicion.

The SAFE Act preserves the government’s new power to obtain any and all records under FISA – including library records – but does put back into place the requirement of individual suspicion that protects the records of innocent people from being obtained by the government.

The Attorney General publicly revealed – in a speech denouncing the American Library Association in September 2003 – that there had been no FISA records searches at all after September 11, 2001. Astonishingly, the Bush Administration still claims that restoring some requirement of individual suspicion for FISA records searches would harm anti-terrorism investigations. If the government is not using a power at all, amending the standards for the use of the power will have no effect on its investigations.

The Justice Department has clarified that the Attorney General’s statement does not necessarily mean that it has not sought FISA records searches after the date of the Attorney General’s speech. The Justice Department now says that the number of such FISA searches, if any, will continue to remain classified for national security reasons despite the Attorney General’s one-time declassification of that number for political purposes.

The Bush Administration also inappropriately compares the standards for production of records pursuant to a criminal grand jury subpoena with those for production of records under FISA. The government can and does use grand jury subpoenas on a regular basis to obtain records in terrorism investigations. Nothing in the SAFE Act would limit the power of any grand jury to issue a subpoena. Rather, the government could still use the grand jury to obtain records in terrorism investigations, just as it can in any other investigation of crime, such as drug trafficking or fraud.

While the grand jury’s powers are extensive, grand juries are supposed to obtain records that have some relevance to criminal wrongdoing. There is no such requirement in intelligence investigations, which often implicate political activity protected by the First Amendment. As a result, the power to obtain records must be limited in some other way in order to prevent widespread fishing expeditions into the personal records and reading habits of ordinary Americans.

The SAFE Act does this by restoring the requirement of “”specific and articulable facts”” that the records pertain to a terrorist, spy or other foreign agent. This level of individual suspicion is more than mere relevance, but less than probable cause – the same level a police officer must show to stop and frisk a person on the street. See Terry v. Ohio, 392 U.S. 1, 30 (1968). This is not a high hurdle to pass – but it does require some individual suspicion – and so would greatly limit the danger that the FISA records search power could be misused to secretly obtain the private records of innocent people.

The government still maintains that releasing any information about the use of its records powers under FISA would harm national security. The orders themselves bar a recipient from informing anyone that they have received such a letter. The government denied, on national security grounds, the ACLU’s request for information about the use of this power and continues to defend this position in court.

Even without knowing whether the FISA records power has ever been used, the ACLU has documented the serious chilling impact of a secret government power to obtain any records or tangible things outside of a criminal investigation.[6]

  • People fear attending mosques because they believe involvement in Muslim organizations whose records could be obtained by a section 215 order could mark them for FBI scrutiny. Attendance at some mosques has dropped by 50%.
  • Many donors who had contributed to Muslim charities have stopped doing so because they fear that the charities’ records could be obtained by the government and they would be falsely accused of supporting terrorism.
  • Community leaders have resigned to avoid government investigation of their personal records.
  • Organizations that help settle refugees and other immigrants have altered record-keeping practices to ensure sensitive records concerning, for example, political activities or gender-based violence will not be maintained because they could be obtained by federal authorities and then shared with a foreign government or other person who could harm a family member. Service to clients has suffered as a result.
  • Many Americans have sought to avoid controversial websites or activism in controversial political groups they believe the government might target for an investigation.

National Security Letters. The SAFE Act contains a simple clarification of the government’s power to obtain records without a court order using national security letters. The power to obtain national security letters was amended by section 505 of the USA PATRIOT Act to eliminate the requirement that there be any individual suspicion the records pertain to a foreign agent. National security letters may be issued to obtain, among other things, transactional records about the customers of a telephone, Internet, or other “”communications service provider.”” 18 U.S.C. § 2709(b).

The SAFE Act does not restore the individual suspicion requirement or otherwise amend the general standards for national security letters provided the USA PATRIOT Act, and now greatly expanded by the amended definition of “”financial records”” in the Intelligence Act for FY2004.[7] It does clarify the law to ensure that libraries are not treated as “”communications service providers”” subject to providing transactional records about their patrons simply because they provide public access to the Internet. This change is needed to ensure that the amendments to section 215 have the desired effect of safeguarding the privacy of library records. The Bush Administration continues to maintain that libraries that provide access to the Internet – the vast majority – are subject to secret letter demands for their records.

Libraries occupy a unique and important role in our democratic society. It is not asking too much to require the government to obtain information about the reading habits or Internet usage of library patrons only by presenting a grand jury subpoena, FISA records order based on individual suspicion, or other court order. A national security letter is not a court order and is not reviewed by an impartial person, such as a judge or magistrate, before it is issued. The Bush Administration fails to acknowledge that the Justice Department could obtain the information it might need from a library with any number of authorities after the passage of the SAFE Act – it simply could not do so outside the supervision of a court.

The Bush Administration also mischaracterizes the effect of the SAFE Act by claiming that it treats use of the Internet in a library differently than use of the Internet in a home or business. Under the SAFE Act, a library would be treated precisely the same as any other customer of a communications service provider. Records held by the communications service provider about a library’s account – or about the account of an individual who uses a library computer to access their own Internet account – could be obtained with a national security letter just as such records could be obtained about the account of any other home or business customer. The SAFE Act merely makes clear that the library itself cannot be regarded as a communications service provider.

The government maintains that releasing any real information about the use of national security letters would harm national security. The letters themselves, like records searches under FISA, bar a recipient from informing anyone that they have received such a letter. The government denied the ACLU’s request for information about the use of this power and continues to defend this position in court.

The ACLU is itself barred from releasing information about the use of these letters because the ACLU is itself currently subject to a gag order. The ACLU filed the first ever challenge to a national security letter. The challenge was filed under seal, but some information (including the existence of the case) has now been approved for release by the judge.

Over the 2003-2004 holiday period, the FBI obtained travel records for almost 300,000 visitors without any specific intelligence targeting Las Vegas or any specific information indicating the people whose records were obtained were connected to terrorism. Reportedly, the FBI obtained many of these records through the use of its power to demand “”financial records”” with a national security letter. This power, which was broadened by the USA PATRIOT Act through its elimination of individual suspicion, was extended to casinos in legislation passed in late 2003 as part of that year’s intelligence authorization act. The records included both names of guests and other personal information maintained by casinos that was difficult for the casinos to segregate.

While the SAFE Act would simply exempt libraries from the national security provision, and so would not directly affect situations involving other types of records, it would ensure that this very broad power could not be used to invade the privacy of library users. The SAFE Act would also ensure that national security letters are added to the “”sunset”” provision of the PATRIOT Act so that the use of national security letters in other contexts could be reviewed by Congress before 2005.

Sunsets. Adding new provisions to the sunset clause makes common sense because it gives Congress much-needed leverage in its oversight of the Administration’s anti-terrorism effort.

The Administration wants to make permanent the entire USA PATRIOT Act. Congress has wisely rejected that position despite repeated calls by the Administration to do so, because it expected that the leverage of the sunset clause (section 224) would encourage Justice Department cooperation with oversight efforts.

The continued failure of the Justice Department to answer many of Congress’s legitimate questions shows that Congress was right to be worried its oversight efforts would not be taken seriously. Questions have gone answered for lengthy periods of time, and some information requested by members in their oversight capacity has been provided on a fragmentary basis or not at all. Without the sunset provision, it seems likely that the Justice Department’s cooperation with oversight efforts would be even more cursory.

Most of the USA PATRIOT Act 158 provisions are not subject to the sunset clause. Congress chose to limit the sunset clause to some 14 surveillance provisions that it believed could pose a serious risk to personal privacy.[8] Unfortunately, Congress omitted a number of key provisions, including those broadening “”sneak and peek”” searches, nationwide search warrants, and national security letters. The inclusion of these four additional provisions within the sunset clause does not prejudice, one way or another, the decision Congress must make by December 31, 2005 about whether to reauthorize these or other provisions of the USA PATRIOT Act.

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