Testimony of National Security Policy Counsel, Timothy H. Edgar, for a Hearing on the USA PATRIOT Act of 2001 Before the Permanent Select Committee on Intelligence

Document Date: May 10, 2005

American Civil Liberties Union

Testimony at a Hearing on the USA PATRIOT Act of 2001 Before the Permanent Select Committee on Intelligence of the House of Representatives

Submitted by
Timothy H. Edgar
National Security Policy Counsel
May 11, 2005

Chairman Hoekstra, Ranking Member Harman and Members of the Committee:

I am pleased to appear before you today on behalf of the American Civil Liberties Union and its more than 400,000 members, dedicated to preserving the principles of the Constitution and Bill of Rights at this rare, and crucial, public oversight hearing on the USA PATRIOT Act of 2001.[1]

The Patriot Act was passed by Congress in 2001 just six weeks after the terrorist attacks of September 11. Although the act passed by wide margins, members on both sides of the aisle expressed reservations about its impact on fundamental freedoms and civil liberties. As a result, Congress included a “”sunset clause”” providing that over a dozen provisions will expire on December 31, 2005, if Congress does not act to renew them.

Congress was wise to do so. Terrorism has been with us for a long time. It will likely be with us for generations to come. The decisions that you make over the coming months about the Patriot Act must be made with an eye toward that reality.

A number of the provisions that will expire are within the jurisdiction of this committee, including some of the most controversial provisions. This statement’s main focus is on those Patriot Act intelligence provisions that pose the greatest risk for civil liberties.[2]

Congress should use the upcoming debate over the renewal of parts of the Patriot Act as an opportunity to reassert its rightful role in determining law enforcement and national security policy in the post-9/11 context, which has waned as the power of the Executive Branch has waxed. Before re-authorizing any intelligence power, this committee should require the Executive Branch to meet the standard articulated by the bipartisan 9-11 Commission.

  • First, Congress should re-examine the specific provisions that sunset, taking care not to renew any provision unless the government can show “”(a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties.””[3]
  • Second, “”[i]f the power is granted, there must be adequate guidelines and oversight to properly confine its use.””[4]

Congress may not be able to fully review or assess the effectiveness, and impact on civil liberties, of some anti-terrorism powers that the Executive Branch was granted in the Patriot Act. The lack of meaningful information about the use of many powers is sometimes a direct result of excessive secrecy in the Executive Branch, and sometimes the result of necessary secrecy. In any case where sufficient information is not available to undertake a thorough review, Congress should set a new sunset date and impose additional reporting requirements to facilitate a proper review, rather than cede those powers permanently to the Executive Branch.

Because many domestic intelligence authorities operate in complete secrecy, this committee plays a particularly critical role in determining whether specific intelligence powers “”actually materially enhance security.”” Only an intensive and painstaking process of examining the facts regarding the use of these powers can answer that question.

This committee was created in large part to perform just that function. It should not be content with general statements of the Patriot Act’s usefulness or selective accounts of how certain sections have been used. Rather, we hope it will aggressively and thoroughly examine whether administration claims that certain powers are vital to the prevention of terrorism are born out by specific facts.

Until now, the government has fallen short. Last month, Senate Judiciary Chairman Arlen Specter expressed frustration at the Justice Department’s inability to provide such facts even in a classified setting. “”This closed-door briefing was for specifics,”” Senator Specter explained. “”They didn’t have specifics.”” [5]

Excessive Secrecy Impedes Oversight of Patriot Act

Secrecy permeates the Patriot Act, particularly in its expansions of intelligence authorities. Many powers are accompanied by statutory gag orders. Moreover, the administration has taken the posture that information that is embarrassing to it must be kept secret for reasons of national security. For these reasons, it has been extremely difficult to uncover information about how the Patriot Act has been used, and even information about whether particular sections have been used at all. The ACLU has repeatedly sought this information in letters, requests under the Freedom of Information Act (FOIA) and in FOIA litigation.

Despite the efforts of the Executive Branch to conceal information about how controversial provisions of the Patriot Act have been used, some information has become public. This information is disturbing in and of itself, and may be emblematic of other abuses that have not yet become public. Appended to this testimony are some examples of abuses of intelligence powers expanded under the Patriot Act, and of the chill on the exercise of First Amendment rights that such powers can create.

Patriot Act Intelligence Powers: Greater Secrecy, Less Meaningful Review

In the debate over the Patriot Act, we ask the committee to pay particular attention to the most intrusive expanded intelligence surveillance techniques.

Secret Records Searches Without Probable Cause or an Ability to Challenge: Library Records, Other “”Tangible Things,”” and National Security Letters

Perhaps no sections of the Patriot Act have become more controversial than the sections allowing the government secretly to obtain confidential records in national security investigations – investigations “”to protect against international terrorism or clandestine intelligence activities.””

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 the secret gathering of 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).

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 government officials might decide is needed for intelligence reasons. The Patriot Act eliminated this basic limit for records searches, including the power under the Foreign Intelligence Surveillance Act (FISA) to obtain with a FISA court order any records or other “”tangible things,”” and the FBI’s power to obtain some records without any court review at all.

  • Section 215 of the Patriot Act 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 an order from the FISC. The order is based merely on a certification by the government that the records are “”sought for”” a national security investigation and the judge is required to issue the order. The order contains an automatic and permanent gag order. Section 215 is subject to the sunset clause. Last month, the government acknowledged for the first time that Section 215 has been used, that it has been used 35 times, and that it was used to obtain credit, apartment, ISP and other records, but not library or medical records.
  • Section 505 of the Patriot Act expanded the FBI’s power to obtain some records in national security investigations without any court review at all. These “”national security letters”” can be used to obtain financial records, credit reports, and telephone, Internet and other communications billing or transactional records. The letters can be issued simply on the FBI’s own assertion that they are needed for an investigation, and also contain an automatic and permanent nondisclosure requirement. Section 505 does not sunset.

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 for issuing records demands in national security investigations.

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, records powers 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.

These records search provisions are the subject of two court challenges by the ACLU. In Muslim Community Association of Ann Arbor v. Ashcroft, No. 03-72913 (E.D. Mich.), the ACLU has challenged section 215 of the Patriot Act on First and Fourth Amendment grounds. As explained in the case example, the ACLU’s challenge has uncovered serious and unconstitutional chilling effects of section 215 on the exercise of basic freedoms. The district court has not yet ruled in this case.

In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a federal district court struck down a “”national security letter”” records power expanded by the Patriot Act, agreeing 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 case is now on appeal before the United States Court of Appeals for the Second Circuit.

There has been some confusion about whether Doe v. Ashcroft struck down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck down, in its entirety, 18 U.S.C. § 2709(b), the national security letter authority for customer records of communications service providers, as amended by section 505(a) of the Patriot Act. The court referred repeatedly to the Patriot Act in its opinion. To be clear, the court invalidated all of section 505(a) of the Patriot Act. It is simply inaccurate to imply that the court’s decision was unrelated to the Patriot Act, or that it did not strike down a provision of the Patriot Act. If the court’s decision is sustained on appeal, section 505(a) of the Patriot Act will no longer have any force or effect.[6]

Both FISA records demands and national security letters can be used to obtain sensitive records relating to the exercise of First Amendment rights. A FISA record demand can now be used to obtain a list of the books or magazines someone purchases or borrows from the library. A FISA record demand can also now be used to obtain the membership list of a controversial political or religious organization. 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.

While both national security letters and 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, a 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 government defends section 215 as analogous to a grand jury subpoena in a criminal investigation, which they point out does not require probable cause and can be issued, unlike a section 215 order, without prior review by a judge. As explained above, section 215 is dramatically different from a subpoena because it provides no explicit right to challenge and contains an automatic, permanent gag order that even the Attorney General concedes should be amended to ensure it permits conversations with attorneys.

Moreover, this argument fundamentally misunderstands the difference between foreign intelligence and criminal investigations, and the impact of that difference on First Amendment freedoms. Foreign intelligence investigations are domestic investigations of the activities of foreign governments or organizations, including foreign terrorist organizations. Foreign intelligence investigations may involve investigation of criminal activities, such as espionage or terrorism, but may also involve intelligence gathering for foreign policy or other purposes involving lawful activities. The guidelines for conducting foreign intelligence investigations (including what level of suspicion is required for certain intrusive techniques) are classified.

As Justice Powell, writing for the Supreme Court in a landmark case involving intelligence gathering, observed:

National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. . . History abundantly documents the tendency of Government–however benevolent and benign its motives–to view with suspicion those who most fervently dispute its policies. . . .

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.[7]

Moreover, as a result of section 203 of the Patriot Act, information properly obtained in a criminal investigation of terrorism (including information obtained with a grand jury subpoena) can be freely shared with intelligence agents. Section 215 is an entirely different, and more intrusive, power – a power for intelligence agents to obtain highly personal records unbounded by any need to show relevance to any criminal investigation.

The administration has also tried to allay fears about the broad scope of section 215 by selectively disclosing fragmentary information about its use. At a hearing before the Senate Judiciary Committee, Attorney General Gonzales revealed that section 215 had been used 35 times, and had not been used to obtain library or medical records. Of course, once is too often where the underlying statute is unconstitutional, as is the case with section 215. The administration defends the potential use of section 215 to obtain library or other highly personal records without any individual suspicion.

The selective disclosure of information about how often section 215 has been used, and what records it has been used to obtain, calls into serious question the government’s longstanding position that such information is properly kept secret. If such aggregate information can be disclosed as part of an aggressive call for Congress to renew the Patriot Act, it can be disclosed in a more balanced and systematic way.[8]

We do not ask that you repeal either section 215 or section 505 of the Patriot Act. Rather, we ask that restore the “”agent of a foreign power”” requirement and that you amend the statute to time limit the gag, exempt attorney-client communications from it, and allow for court challenges. If these changes are made to the NSL statute, they would satisfy the court that struck down that statute under the First and the Fourth Amendment.

The SAFE Act (“”Security and Freedom Ensured Act,”” H.R. 1526) restores the requirement of “”specific and articulable facts giving reason to believe”” the records “”pertain to a foreign power or an agent of a foreign power”” for FISA records demands and provides a sunset date for the expanded national security letter power. Restoring this requirement is needed to ensure sections 215 and 505 of the Patriot Act are not used to obtain the personal records of ordinary Americans.

The Senate version of the SAFE Act (S. 737) makes additional improvements which should be added to the House version should the SAFE Act move forward to committee consideration. S. 737 makes explicit the right to file a motion to quash the records demands because they are unreasonable, contrary to law, or seek privileged information. The Senate bill also sets standards for a judicially-imposed, temporary secrecy order that can be challenged by the recipient of a records demand. Finally, the Senate bill provides a right to notice, and an opportunity to challenge, before information from a FISA records search or national security letter search can be used in a court proceeding.

Secret Searches and Surveillance of Homes and Offices

A government search or electronic surveillance of a home or office generally requires a warrant based on probable cause of crime under the Fourth Amendment. As a general rule, the owner of the home or office is entitled to notice of the search. Foreign intelligence searches have been an exception to this rule. They do not require criminal probable cause and forbid notice to the owner.

The special power to secretly search a home or office, without ever notifying the owner, is among the most intrusive domestic surveillance powers available to the federal government. Such “”black bag jobs”” were the hallmark of national security investigations run amok, including COINTELPRO and other investigations of civil rights activists, anti-war activists, and other Americans who in the end were guilty of nothing more than peacefully opposing government policies.

The inappropriate use of a secret search power, without court oversight, led directly to warrantless wiretaps of civil rights leaders and, eventually, an unauthorized “”black bag job”” at the Watergate, sending a shock wave through the nation and prompting thorough and searching reviews of the intelligence community. These reviews led Congress to enact important reforms of intelligence powers, including the passage of the Foreign Intelligence Surveillance Act (FISA) and the creation of this committee.

While FISA secret searches and wiretaps pre-date the Patriot Act, two vital protections that cabined such searches until 2001 have been seriously eroded by amendments that are subject to the December 31, 2005 sunset. First, section 218 of the Patriot Act allowed the government to obtain a FISA secret search order even where the “”primary purpose”” of the search was not foreign intelligence. Second, for searches of so-called “”lone wolf”” terror suspects, section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004[9] eliminated, for the first time, the basic requirement applied by the Foreign Intelligence Surveillance Court for all FISA secret searches and surveillance: that probable causes exists that the target of the search is a foreign power or agent of foreign power.

Section 218 of the Patriot Act. This provision of the Patriot Act takes aim at a provision of FISA designed to ensure against the government using FISA improperly as an end-run around the Fourth Amendment for criminal suspects. Prior to the Patriot Act, government officials had to certify that the primary purpose of a secret FISA search was to obtain foreign intelligence.[10] Section 218 of the Patriot Act weakened this standard, allowing agents to obtain these warrants so long as they certify that “”a significant purpose”” of the search is foreign intelligence.

The danger of section 218’s lower standard is that the government will cut corners in criminal cases. Because foreign intelligence no longer must be the primary purpose of the search, the government can use FISA as a substitute for traditional criminal powers. As a result, now the government can — for what are primarily criminal searches — evade the Fourth Amendment’s constraints of probable cause of crime and notice to the person whose property is being searched.

Brandon Mayfield is a case where such corners may have been cut. As described in more detail in the appendix, Mr. Mayfield is a Portland, Oregon resident who is a convert to Islam and a civil rights advocate. Mr. Mayfield was wrongly accused by the government of involvement in the Madrid bombing as a result of a evidence, including a mistaken fingerprint identification, that fell apart after the FBI re-examined its case following its arrest and detention of Mr. Mayfield on a material witness warrant.

As Attorney General Gonzales acknowledged at a hearing before the Senate Judiciary Committee, Section 218 of the Patriot Act was implicated in the secret search of Mr. Mayfield’s home. The FBI secretly entered the home of an innocent man it wrongly suspected of a crime without a warrant based on criminal probable cause. It did so because the Patriot Act had made it easier to conduct such a search with a FISA search order. While there, agents took hundreds of photographs, copied four computer hard drives and seized ten DNA samples. Prior to the Patriot Act, it is doubtful the search could have taken place under FISA, and instead would likely have been governed by normal search warrant procedures and the exacting standard of criminal probable cause.

The Justice Department maintains that the Mayfield search likely would have been approved before the Patriot Act, because it could have argued the “”primary purpose”” of its secret search was to gather foreign intelligence information, rather than to gather evidence to use against Mr. Mayfield. While it is impossible to know for certain whether the FISC would have agreed, it is certain that the FISC would have required the Justice Department to prove that the main purpose of a search that was so obviously directed at a criminal suspect was actually to collect foreign intelligence information. The Patriot Act allowed the Justice Department to evade that requirement, and the Department has not shown it could have met it. The Inspector General’s investigation of the Mayfield matter is still ongoing.

The Mayfield case and the danger of similar future abuses shows the need for additional safeguards. Without re-building the much-maligned “”wall”” between foreign intelligence and criminal investigations, Congress should follow the approach of the Foreign Intelligence Surveillance Court (FISC), restoring its power to serve its proper supervisory function to prevent the misuse of FISA. Congress should empower the court to make sure foreign intelligence investigations are not directed by federal prosecutors, although prosecutors and criminal investigators should be allowed full briefings on such investigations.

In its first (and, so far, only) public opinion, the FISC, in an opinion by Judge Lamberth, expressed alarm at the fact that “”criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack probable cause)”” of crime, and noting its highly intrusive aspects:

a foreign intelligence standard instead of a criminal standard of probable cause;
use of the most advanced and highly intrusive techniques for intelligence gathering; and
surveillances and searches for extensive periods of time; based on a standard that the U.S. person is only using or about to use the places to be surveilled and searched, without any notice to the target unless arrested and prosecuted, and, if prosecuted, no adversarial discovery of the FISA applications and warrants.””[11]

Judge Lamberth observed that the FISC’s members had “”specialized knowledge,”” had reviewed “”several thousand FISA applications,”” and were “”mindful of the FISA’s preeminent role in preserving our national security, not only in the present national emergency, but for the long term as a constitutional democracy under the rule of law.””[12] It reasoned that, as a result, it retained supervisory powers to protect against the misuse of FISA for criminal investigative purposes.

The Foreign Intelligence Surveillance Court of Review reversed this opinion, reasoning that section 218 of the Patriot Act had stripped the FISC of this role.[13] If Congress reauthorizes section 218, it should amend it to make clear that, although the “”wall”” is no more, section 218 does not prohibit the FISC from adopting reasonable guidelines to prevent the direction and control of foreign intelligence investigations by prosecutors for law enforcement ends.

Surveillance under FISA is growing rapidly. As a result in part of section 218, the FISA statute, which is supposed to be directed at a narrow subset of national security investigations, is fast become the preferred method of government surveillance. In 2003 and 2004, for the first time in history, there were more surveillance orders issued by the FISA court than by every other court – state or federal – in the United States for criminal surveillance under Title III.

This shift in law from a more open criminal surveillance statute based on probable cause of crime, towards a more secret surveillance statute, not based on probable cause of crime, has serious implications for civil liberties. Congress should explore a remedy for one of the those problems: the lack of “”adversarial discovery for FISA applications and warrants.”” This is in marked contrast to the extensive discovery available to criminal defendants, enabling the court to hold government officials accountable for unlawful searches and surveillance.

Congress should enact legislation making available to the defense such “”adversarial discovery of FISA applications and warrants”” using the carefully-crafted Classified Information Procedures Act (CIPA). The ACLU strongly supports H.R. 1502, the Civil Liberties Restoration Act (CLRA), sponsored by Representatives Howard Berman (D-CA) and John Conyers, Jr. (D-MI), which includes this provision at section 401.

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004. Section 6001 further eroded the basic safeguards included in FISA by authorizing, for the first time, secret searches and surveillance of homes and businesses where there is neither criminal probable cause nor probable case that the person is acting on behalf of any foreign power.

FISA rests what would otherwise plainly be unconstitutional searches (because they are not based on probable cause of crime) on an alternate showing: probable cause that those individuals are acting on behalf of a foreign power. By eliminating this alternate showing for non-citizen visitors to the United States suspected of being “”lone wolf”” terrorists, we believe section 6001 violates the Fourth Amendment.

Moreover, section 6001 was not needed to address deficiencies in the use of FISA search powers uncovered after September 11, its original rationale. The National Commission on Terrorist Attacks Upon the United States (“”9-11 Commission””) uncovered a number of serious, structural breakdowns in the intelligence community prior to September 11. A lack of legal authority to collect intelligence information was not among its findings.

Section 6001 has erroneously been described as necessary to respond to the government’s failure to seek a warrant to search the laptop computer of suspected terrorist Zacarias Moussaoui. The 9-11 Commission rejected that conclusion, finding that government agents “”misunderstood and misapplied”” guidelines regarding FISA search warrants, and that these mistakes contributed to their failure to seek either a criminal or FISA warrant in the Moussaoui case.[14] The 9-11 Commission did not recommend any change to existing legal authorities, including FISA.

In a February 2003 report on FISA oversight, Senators Leahy, Grassley and Specter noted, with respect to this proposed change, that the Department of Justice was unable to provide even a single case, even in a classified setting, that explained why what became section 6001 was needed. As the report states, “”In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.””

Section 6001 could do serious harm to the government’s anti-terrorism efforts if a court concludes (as we believe it will) that the surveillance it authorizes violates the Fourth Amendment, making the evidence obtained by such surveillance inadmissible. The “”foreign power”” standard – which section 6001 eliminates for non-citizens – is integral to the rationale given by the Foreign Intelligence Surveillance Court of Revi

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