After 2009 - a year when federal prosecutors charged more suspects with terrorism than in any year since the attacks of September 11, 2001 - and in today's atmosphere of heightened fear triggered by the aborted plot to blow up a Detroit-bound airliner on Christmas Day, Congress will begin again this month to consider reauthorization of key parts of the USA Patriot Act.
The act was passed by a frightened Congress, with very little debate, just 45 days after the terrorist attacks on the World Trade Center, the Pentagon and the hijacked airliner that crashed in Shanksville, Pennsylvania. Only one US senator - Democrat Russ Feingold of Wisconsin - voted against the legislation.
Three sections of the Act were due to "sunset" - expire, unless reauthorized - on December 31 of last year. Congress must amend those sections that have been found unconstitutional or have been abused to collect information on innocent people. The House of Representatives passed legislation, but the Senate Judiciary Committee was unable to agree on language and voted to temporarily extend consideration until next month.
Reconsideration of the contentious law comes at a time of record federal terrorism prosecutions in 2009. According to The Associated Press, federal prosecutors charged more suspects with terrorism in 2009 than in any year since the attacks of September 11, 2001, providing evidence of what experts call a rise in plots spurred by Internet recruitment, the spread of al-Qaida overseas and ever-shifting tactics of terror chiefs.
A review of major national security cases by The Associated Press found 54 defendants had federal terrorism-related charges filed or unsealed against them in the past 12 months. The Justice Department confirmed that 2009 had more defendants charged with terrorism than any year since the 2001 attacks.
The quick pace of cases continued until the end of the year, with an attempted Christmas bombing aboard a Detroit-bound airliner. In that plot, a Nigerian student, Abdul Farouk Abdulmutallab, boarded a Detroit-bound airliner, Northwest Airlines Flight 253 with 289 people aboard, in Amsterdam. Explosives were later found sewn into his underwear. A fire broke out in the plane during an attempt to ignite the explosives. Passengers and cabin crew extinguished the blaze and subdued the would-be bomber, who was taken into custody when the plane landed safely in Detroit.
Reauthorization has also put the White House and the Senate Judiciary Committee on a collision course with powerful liberal lawmakers in the House of Representatives. The Obama administration announced it was willing to consider "modifications" to the Patriot Act, "provided that they do not undermine the effectiveness of these important authorities."
With the apparent approval of the Obama White House and a number of Republicans - and over the objections of liberal Senate Democrats including Russ Feingold of Wisconsin and Dick Durbin of Illinois - the Senate Judiciary Committee has voted to extend the three provisions with only minor changes.
The Senate Judiciary Committee passed the USA PATRIOT Act Extension Act of 2009, a bill that critics say falls far short of restoring the necessary civil liberties protections lacking in the original Patriot Act. The bill, passed by the committee after two sessions of debate, makes only minor changes to the Patriot Act and was further watered down by amendments adopted during markup. The Senate body temporarily postponed reconsideration until next month.
Meanwhile, the House Judiciary Committee passed much stronger legislation. A Conference Committee will have to reconcile House and Senate versions. Negotiations over legislative language continue.
Congress first revisited expiring provisions in the USA PATRIOT Act in 2005. After months of debate and negotiations, legislation to authorize certain provisions in the Act was signed into law in March 2006. The 2006 reauthorization included another sunset provision for three surveillance tools, which were set to expire on December 31, 2009.
Here are the sections Congress will be considering:
The John Doe Roving Wiretap Provision.
Section 206 amended the Foreign Intelligence Surveillance Act (FISA) so that a wiretap order issued by the secret FISA court no longer has to specify what type of communications the order applies to. This allows investigators to engage in "roving" surveillance, using a single wiretap order to listen in on any phone line or monitor any Internet account that a suspect may be using - whether or not other people who are not suspects also regularly use it.
Section 215 or the "Library Records" Provision.
Section 215 allows the FBI secretly to order anyone to turn over business records or any other "tangible things," so long as the FBI tells the secret Foreign Intelligence Surveillance Act (FISA) court that the information sought is "for an authorized investigation ... to protect against international terrorism or clandestine intelligence activities." These demands for records come with a "gag order" prohibiting the recipient from telling anyone, ever, that they received a Section 215 order.
The "Lone Wolf" Provision.
This provision amends FISA's definition of "agent of a foreign power" to include any person, other than a US person, who "engages in international terrorism or activities in preparation therefore." Previously, that definition required a nexus to a foreign power or entity, such as a foreign government or an international terrorist organization. The expanded definition allows the government to use FISA for surveillance of a non-US person who has no known ties to a group or entity. Congress passed this "lone wolf" provision because it was concerned that the previous FISA definitions did not cover unaffiliated individuals - or those for whom no affiliation can be established - who nonetheless engage in or are preparing to engage in international terrorism.
This past summer, Congress passed a law to permit the government to conduct warrantless and suspicion-less dragnet collection of US residents' international telephone calls and e-mails. Civil libertarians say this too must be amended to provide meaningful privacy protections and judicial oversight of the government's intrusive surveillance power.
In addition, civil liberties advocates have been pushing Congress to revisit two other antiterror laws they say have had an adverse effect on constitutional protections.
Material Support of Terrorism.
This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial. Since 1996, five years before the 9/11 terrorist attacks, it has been a crime to provide "material support or resources" to any group designated by US officials as a "foreign terrorist organization." There have been a number of Justice Department prosecutions under this law. Congress revised it somewhat in 2004, three years after the attacks.
Numerous legal scholars have spoken out in opposition to aspects of the material support regimen. One of them, the Georgetown Law Center's David Cole, a widely respected constitutional scholar, charges that "With our return to a 'preventive paradigm' of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950's to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts."
Cole asserts that support for the lawful activities of a designated group should not be unlawful, and that the not-for-profit sector needs to insist that constitutional rights apply in the war on terror. He is calling for changes in the enabling legislation when Congress returns from its August recess.
Cole also argues that "government is increasingly turning to public-private partnerships to reinforce and broaden the impact of its anti-terrorism policies."
Cole said, "While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light," he said, "the nonprofit sector has an obligation to resist such a partnership with government."
Like many of like mind, he has also been critical of the International Emergency Economic Powers Act (IEEPA). Although originally designed for embargoes, during the Clinton administration government started using it for anti-terrorist purposes, putting "embargoes" on political groups or individuals under suspicion. Again, Cole says, in the absence of a hearing or notification of charges, this is a violation of due process.
The "material support" statute has also had an adverse effect on immigration law. An immigrant cannot support any group that has threatened to use a weapon. Because this law is retroactive, even support for an organization such as the African National Congress that was legal at the time is an offense that could lead to deportation.
National Security Letters (NSLs).
The FBI uses NSLs to compel Internet service providers, libraries, banks and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people. Government reports confirm that upwards of 50,000 of these secret record demands go out each year. In response to an ACLU lawsuit (Doe v. Holder), the Second Circuit Court of Appeals struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records. They require no probable cause or judicial oversight. They also contain a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued. The gag order was ruled unconstitutional as an infringement of free speech, in the Doe v. Ashcroft case.
According to reporting in The Washington Post, the FBI illegally collected more than 2,000 US telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.
E-mails obtained by The Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.
Reports from the Department of Justice Inspector General (IG) revealed the government's widespread misuse of NSLs and the authorities contained in Section 215, which allow the FBI to demand information about innocent people who are not the targets of any investigation.
The first two IG audits, covering NSLs and Section 215 orders issued from 2003 through 2005, were released in March 2007. They confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities.
The NSL audit revealed that the FBI managed its use of NSLs so negligently that it literally did not know how many NSLs it had issued. As a result, the FBI seriously underreported its use of NSLs in its previous reports to Congress.
The IG also found that FBI agents repeatedly ignored or confused the requirements of the NSL authorizing statutes, and used NSLs to collect private information against individuals two or three times removed from the subjects of FBI investigations.
In March 2008, the IG released a second pair of audit reports covering 2006 and evaluating the reforms implemented by the DOJ and the FBI after the first audits were released in 2007. The new reports identified many of the same problems discovered in the earlier audits.
The 2008 NSL report showed that the FBI issued 49,425 NSLs in 2006 (a 4.7 percent increase over 2005), and confirmed the FBI is increasingly using NSLs to gather information on US citizens (57 percent in 2006, up from 53 percent in 2005).
The 2008 IG audit also revealed that high-ranking FBI officials, including an assistant director, a deputy assistant director, two acting deputy directors and a special agent in charge, improperly issued 11 "blanket NSLs" in 2006 seeking data on 3,860 telephone numbers. None of these "blanket NSLs" complied with FBI policy and eight imposed unlawful non-disclosure requirements on recipients.
The report reveals a systemic, widespread abuse of power. The FBI's authority to issue NSLs was widely expanded by the Patriot Act and it has been increasingly used to collect private information on American citizens without court approval.
It details the FBI's use of exigent letters, or emergency letters, to gain Americans' private phone records for investigations when no emergency existed and has significant and troubling redactions in portions dealing with those phone records. The report also details the bureau's use of exigent letters to gain information on journalists in violation of the Attorney General Guidelines governing criminal and terrorism investigations. This audit follows two prior OIG reports on the FBI's use of NSLs that found serious breaches of department regulations and multiple potential violations of the law.
"Given this report, there is absolutely no excuse for Congress not to reform the NSL authority during the current Patriot Act debate," said Michael Macleod-Ball, acting director of the ACLU Washington legislative office.
"Without an outside check, FBI agents are able to demand and obtain sensitive information at will. This is the kind of abuse that is inevitable when we broaden the government's surveillance power and don't modernize privacy standards. It has become very clear that the FBI cannot police itself. Congress must step in to institute and conduct rigorous and frequent oversight of the agency's use of NSLs and exigent letters."
In 2004, the ACLU and New York Civil Liberties Union filed a lawsuit on behalf of an ISP that the FBI served with an NSL. Because the FBI imposed a gag order on the ISP, the lawsuit was filed under seal. Although the US Court of Appeals for the Second Circuit ruled in 2008 that the gag order provisions were unconstitutional, the "John Doe" NSL recipient in that case remains gagged.
"The Inspector General's findings make crystal clear that the FBI engaged in a systemic abuse of power and those responsible must be held accountable," said Melissa Goodman, staff attorney with the ACLU National Security Project. "This report demonstrates the dangers of not only unchecked surveillance power, but also the FBI's unchecked gag power. By preventing NSL recipients from speaking out against the FBI's intrusive practices, the government was able to illegally demand the records of thousands of innocent Americans for years. The government must remove any unjustified and unnecessary gag orders from NSL recipients."
The American Civil Liberties Union had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but also other overly broad surveillance laws.
Amendments that were offered but failed by voice vote included an amendment by Sen. Richard Durbin (D-Illinois) to curb the abuse of the overly broad National Security Letter (NSL) statute and another offered by Sen. Russell Feingold (D-Wisconsin) to allow the "lone wolf" provision to expire (the never-used provision that targets individuals who are not connected to terrorist groups).
An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.
However, there were two amendments included in the final bill - both offered by Senator Feingold - that are victories for privacy: The Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL and the government must notify suspects of "sneak and peek" searches within seven days instead of the thirty days currently outlined in the statute. "Sneak and peek" searches allow the government to search a home without notifying the resident immediately.
Michael Macleod-Ball, acting director of the ACLU Washington legislative office, probably spoke for most civil libertarians when he said, "We are disappointed that further changes were not made to ensure Americans' civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportunity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans' Fourth Amendment rights. The meager improvements made during this markup will certainly be overshadowed by allowing so many horrible amendments to be added to an already weak bill. Congress cannot continue to make this mistake with the Patriot Act again and again. We urge the Senate to adopt amendments on the floor that will bring this bill in line with the Constitution."
Those provisions would leave unaltered the power of the Federal Bureau of Investigation (FBI) to seize records and to eavesdrop on phone calls and e-mail in the course of counterterrorism investigations.
Nor have the White House and the Senate positions pleased the powerful House members who are proposing sweeping reforms to US surveillance law. In fact, they appear to be on a collision course.
Michigan Democratic Rep. John Conyers, chairman of the House Judiciary Committee, proposes limiting government's Patriot Act spy powers.
Lawmakers are taking the expiration as an opportunity to revisit a number of surveillance provisions, including elements of the Patriot Act that aren't set to expire, including a 2008 law that granted legal immunity to phone companies that cooperated with the Bush administration's warrantless wiretapping of Americans.
The proposals by Conyers and Democrats Jerrold Nadler of New York and Bobby Scott of Virginia include a plan to alter the standard by which so-called National Security Letters are issued under the Patriot Act.
Under a provision that is not set to expire, NSLs allow the FBI, without a court order, to obtain telecommunication, financial and credit records relevant to a government investigation. The FBI issues about 50,000 NSLs annually, and an internal watchdog has found repeated abuses of the NSL powers.
The Conyers-Nadler-Scott package would restrict the government by only permitting NSLs in cases concerning terrorism or spy activities of an agent of a foreign power. If it became law, such a plan would vastly reduce the numbers of persons the government could target.
A virtually identical proposal by Sen. Richard Durbin, an Illinois Democrat, failed to get out of the Senate Judiciary Committee on October 8 after lawmakers caved to FBI concerns that the changeover would jeopardize terror investigations.
Kevin Bankston, a privacy lawyer with the Electronic Frontier Foundation, applauded the latest NSL proposal.
"As currently written, NSLs can be used to obtain the records of somebody not suspected of a crime. It's a suspicionless standard. Under the proposal, they must relate to an agent of a foreign power, of somebody working for a foreign government or foreign terror organization," he said. "That ensures that there is a particularized suspicion rather than allowing them to go on a fishing expedition."
Conyers, in a statement, said: "Over the past eight years, Americans grew tired of the same old scare tactics, designed to fool the public into believing that we needed to give up freedom to be safe from terrorism."
Whether these and the other proposals would survive the House Judiciary Committee is unclear. No hearing date has been set. But the FBI and other counterterrorism agencies are expected to pressure committee members to follow the Senate's path and not substantially alter Patriot Act spy powers.
Another of the Conyers' measures would nullify 2008 Congressional legislation - which is not part of the Patriot Act - that immunized the nation's telecommunication companies from lawsuits accusing them of siphoning Americans' electronic communications to the National Security Agency without warrants. The Electronic Frontier Foundation sued AT&T in a San Francisco federal court, which dismissed the case because of the immunity legislation, which President Barack Obama voted for as an Illinois senator.
A similar immunity bill by Sen. Russ Feingold (D-Wisconsin) has not received consideration by a Senate committee.
The House proposal would also renew, but weaken, a Patriot Act "roving wiretap" provision expiring at year's end. The law currently allows the FBI to obtain wiretaps from a secret court - known as the Foreign Intelligence Surveillance Act Court or FISA court - without having to identify the target or what method of communication is to be tapped. The Conyers proposal, while not requiring the government to disclose who is the target, requires the FBI to specify that a single person is being targeted.
The House proposal would also do away with the so-called "lone wolf" measure that expires at year's end - that allows FISA court warrants for the electronic monitoring of a person for whatever reason - even without showing that the suspect is an agent of a foreign power or a terrorist. The government has said it has never invoked that provision, but that it wants to retain the authority to do so.
A Feingold measure to do away with the "lone wolf" concept was defeated two weeks ago by the Senate Judiciary Committee.
Another proposal on the House table is similar to a measure the Senate Judiciary Committee sent to the full Senate two weeks ago.
It concerns one of the more controversial provisions of the Patriot Act - Section 215, the third and final expiring provision. The section allows the secret FISA court to authorize broad warrants for most any type of record, including those held by banks, libraries and doctors.
Neither the Senate nor the House require the government to show a connection between the items sought under a Section 215 warrant and a suspected terrorist or spy. But the Senate version and the latest House proposal require such a connection when it comes to library records.
In the House of Representatives, Democratic Congressmen John Conyers, Jerrold Nadler and Bobby Scott introduced the USA PATRIOT Amendments Act of 2009, which reforms a number of Patriot Act provisions. The bill reins in the government's spying powers and would:
Protect the Privacy of Records.
- H.R. 3845 amends the National Security Letter (NSL) authority so that the government can only access communications, financial and credit records when they pertain to a terror suspect or spy. Under the original Patriot Act, the government could collect the records of innocent people whenever it deems them "relevant" to an investigation - without any oversight by an impartial court.
The current standard is so low that independent audits found that Approximately 50,000 are issued every year and many are issued against people two or three times removed from an actual suspect.
Protect the Privacy of Communications.
- The Conyers-Nadler-Scott bill amends the Patriot Act's "roving John Doe" authority. That authority permits wiretap orders even without identifying either the person or the place to be tapped. The new bill would require the government to name either the person or the place.
Protect the Privacy of Homes and Businesses.
- The Patriot Act made it easier for the government to secretly conduct searches without giving prior notice by authorizing "sneak and peek" searches whenever notice would jeopardize an investigation. H.R. 3845 reins in this authority by removing this broad catchall, but permits government officials to continue secret searches in emergency or urgent circumstances.
Protect First Amendment Rights.
- The USA PATRIOT Amendments Act requires that gag orders that come with National Security Letters or Section 215 orders meet traditional First Amendment standards. If a recipient of one of these requests wishes to speak out about the government's actions, the burden will be on the government to convince a court that national security will be jeopardized if the recipient is not gagged.
The ACLU, always a major player on these types of issues, believes "The USA PATRIOT Amendments Act isn't perfect." It says the bill needs to be strengthened in two ways.
- First, it should target terror prosecutions on those who intend to help terrorists. The bill should also amend the Patriot Act's so-called "material support" provision, which permits the prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries. Congress should add a provision that would limit prosecution to those who actually intend to support terrorist-oriented actions.
- Second, it should limit the government's ability to obtain tangible evidence, even if it's unrelated to a terrorist. The Patriot Act permits the government to get a secret warrant for "any tangible thing," such as library or medical records, by showing only that the records are "relevant" to an investigation - a very easy standard to meet. The bill should require the government to show that the records relate to a suspected terrorist or spy to minimize the number of innocent people who are swept into terrorism investigations and government databases.
In counting major terrorism cases, the AP used a rigorous standard that produced a conservative count. The various charges that made the list include conspiring to provide material support to terrorists, conspiring to murder people abroad and conspiracy to use a weapon of mass destruction.
The ACLU's recent report, "Reclaiming Patriotism," says, "Congress should begin vigorous and comprehensive oversight hearings to examine all post-9/11 national security programs to evaluate their effectiveness and their impact on Americans' privacy and civil liberties. This oversight is essential to the proper functioning of our constitutional system of government and becomes even more necessary during times of crisis."
Mike German, an adviser to the ACLU on national security, immigration and privacy and a former FBI agent who resigned from the agency in protest of what he saw as continuing failures in the FBI counter-terrorism program, said, "The Patriot Act, the FISA Amendments and the Mukasey Attorney General Guidelines have vastly expanded the government's authority to pry into Americans' private lives, even without suspecting wrongdoing."
German added, "The American people have the right to know how these powers are being used, and Congress has the duty to find out."
The guidelines adopted by Bush-era Attorney General Michael Mukasey in 2008 loosened restrictions on the FBI to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion.
The ACLU charges that "More than seven years after its implementation, there is little evidence to demonstrate that the Patriot Act has made America more secure from terrorists. But there are many unfortunate examples that the government abused these authorities in ways that both violated the rights of innocent people and squandered precious security resources."
According to Daphne Eviatar, senior associate in the Law and Security program of advocacy group Human Rights First, "Given that Congress has just punted on this, nothing has really been fixed. One of the major problems is that the FBI has been claiming in secret sessions with members of Congress that it needs these extraordinary powers to snoop on people who are not even suspected of being terrorists or assisting terrorism, in order to protect national security."
But, she told Truthout, "It has never demonstrated publicly why it needs those authorities, which would seem to violate the Fourth Amendment's prohibition of unreasonable searches and seizures as well as the right to reasonable privacy guaranteed by international law. The FBI has refused to provide information about how it's used its Patriot Act authority so far, and what we've learned from recent IG reports does not inspire confidence."
She added, "At least some senators, such as Russ Feingold, who have participated in these classified briefings, say the FBI's justification doesn't hold up - that it does not support the claim that the FBI needs the power to spy on people who are not even suspected of wrongdoing. (Or, as in the case of the roving wiretap provision, to spy on people that the agency can't even specifically identify.)
"The FBI is essentially telling the public to 'just trust us.' But as the Inspector General reports reveal, the FBI has repeatedly broken the law and violated American citizens' rights to privacy. That suggests that rather than continue to give the government these extraordinary powers to eavesdrop on ordinary Americans without a reasonable basis, Congress should allow the three provisions to expire and reopen debate on other problematic portions of the Patriot Act, such as the section concerning National Security Letters. Ultimately, Congress should not defer to every FBI request for extraordinary power and require the government to abide by the reasonable privacy protections that the US Constitution and international law provide," Eviatar said.
Anther advocate, Chip Pitts, president of the Bill of Rights Defense Committee, told Truthout, "The revelations in the latest Inspector General report of still further FBI abuses and lies regarding National Security Letter authorities under the Patriot Act add to the long list of previous abuses, confirming once again what has been known for centuries: power corrupts."
He added, "As many of us predicted, the Patriot Act has been applied not just to terrorism cases but a wide range of domestic crimes ranging from credit card fraud to child pornography, an example of mission creep at odds with the justifications and representations made when the law was passed.
"At a minimum, provisions like the roving wiretap and business/library records provision should not be reauthorized without requiring individualized, fact-based suspicion, and provisions not used at all (like the "lone wolf" provision) should be removed. But similar protections should also be added to all other provisions of the law (including the National Security Letters provision). Keeping overbroad, ineffective provisions simply to seem politically responsive to fears of terrorism is counterproductive and damaging to both liberty and security," Pitts said.