T Nation

Patriot Act Renewal Compromise


#1

Looks as if the Patriot Act is going to be renewed, with some minor adjustments. Congress has been wrangling over this for a little while now, and they seem to have come up with a workable solution.

http://volokh.com/archives/archive_2005_11_13-2005_11_19.shtml#1132196140

Orin Kerr, November 16, 2005 at 9:55pm

A Very Tentative Reaction to the Patriot Act Compromise: I just finished reading the compromise language hammered out to settle the future of the Patriot Act, and I wanted to blog some initial thoughts. Importantly, these thoughts are highly tentative: I sat down with the 97 pages of statutory text ( http://action.aclu.org/patriotdraft/draft_p1.pdf ) for about an hour before I started to write this post, and it's always possible I missed something important or misconstrued some key sections. With that caveat made, here is my take. [UPDATE: This posts assumes the compromise bill will become law, although according to this story ( http://www.breitbart.com/news/2005/11/16/D8DTTNVO4.html ), it may not.]

This is a win-win bill, but on the whole it's more of a win for the Administration. The basic structure of preexisting law remains in place, but the new law bolsters judicial review and enhances record-keeping and Congressional oversight concerning some of the most controversial provisions of the Patriot Act. From the government's perspective, they get to keep the Patriot Act, subject to some new restrictions. From a civil libertarian perspective, they are stuck with the Patriot Act, but get some of the increased judicial review and Congressional oversight they wanted. On the whole, the compromise is more or less what I expected. Each side gave up something relative to their positions in 2001, but the Administration's better bargaining position (owing to a relative lack of current public opposition to the Patriot Act) meant that the government gave up less.

Here is a summary of the key developments.

Section 215 Orders. The big changes here are judicial review of order applications, explicit rights to challenge orders, and increased Congressional oversight. To obtain a Section 215 order for the production of "tangible things," the government must show facts establishing reasonable grounds that the items are relevant to an authorized investigation. The language here is pretty poorly written, but I think the factual showing is reserved for cases that do not invove a "United States person," FISA-Speak for U.S. citizens and lawful permanent residents. The basic idea: the government has to prove the case for relevance to a judge if the order concerns a citizen or permanent resident.

The Section 215 provisions add a regime of judicial review after the order has been signed, as well. People who receive a Section 215 ordes can consult with attorneys and challenge the order in the FISA court on the ground that the order "does not meet the requirement of [the] section or is otherwise unlawful." The FISA Court of Review can hear appeals from the FISA court's resolution of those challenges, and the losing party can then file a petition for certiorari before the Supreme Court.

DOJ has to do lots of record-keeping relating to Section 215 orders, as well. In annual reports, DOJ must disclose the number of orders granted, modified, or denied, and must give breakdowns for particular types of orders, such as library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, etc. Finally, the DOJ Inspector General has to do a comprehensive and detailed audit of how Section 215 powers are being used.

Sneak and Peek Warrants. The compromise bill also imposes a few additional limitations (albeit rather weak ones) on delayed notice warrants. Existing law permits judges to delay notice on warrants for a "reasonable period" for a range of reasons. The new language replaces the "reasonable period" standard with this rather puzzling standard: "a reasonable period not to exceed 30 days after the date of [the warrant's] execution, or on a later date certain if the facts of the case justify a longer period of delay." I suppose judges may read this as establishing a presumption that a "reasonable period" normally will not exceed 30 days, but it's not really clear.

The sneak-and-peek provisions also add a requirement that judges who authorize delayed notice warrants must file a report with the Administrative Office of the United States Courts explaining that a warrant was applied for, and granted, listing the period of delay, and the crime under investigation. The Administrative Office will then provide Congress with an annual report summarizing the data they received by judges. It'll be interesting to see if the reporting requirement makes some judges less willing to issue delayed notice warrants; I would imagine that some judges would rather not have to file the reports.

National Security Letters. Finally, the compromise bill adds some new regulations of National Security Letters (NSLs), letters issued by the FBI ordering the disclosure of third-party records. First, recipients of NSLs can file a petition in any district court in which they live or do business asking the district court to modify or set aside the order on the ground that compliance would be "unreasonable, oppressive, or otherwise unlawful." They can also petition the court for permission to no longer be bound by the gag orders that accompany NSLs. District courts can modify or set aside gag orders if they find "that there is no reason to believe that disclosure may endanger the national security of the United States" or interfere with an investigation or diplomatic relations. At the same time, the Attorney General, Assistant, AG, and FBI Director retain the right to file a certification in the action stating that disclosure would endanger those interests; if such a certification is filed, it is conclusive unless the court believes it was filed in bad faith.

Finally, the Inspector General of DOJ has to perform a detailed audit of how the NSL authority is being used.


#2

Looks like Senate Democrats, led by Russ Feingold, are threatening to filibuster the Patriot Act renewal unless there are further revisions:

http://pajamasmedia.com/newsml/html/2005/11/18/6433484_USA_Patriot_Act_.shtml


#3

What scares me, is that items like this:

even needed to be revised. You mean, until recently, no one saw this lack of oversight in the judicial system as a problem? Are people just not paying attention to what's going on?


#4

Oversight and accountability have been major pillars of American society since day one.

Perhaps republicans feel that is what is wrong with American, the power of authority is not absolute, it is tempered by balances?

I can just imagine the silliness that will happen during elections, democrats will be accused of accepting funding from terrorists, and their offices will be secretly raided with sneak and peek warrants.

Oh yes, it won't be against the Law the next time some Nixonite wants to get pushy. How long have they waited for this type of authority?


#5

C'mon now...You had to know that no one is paying attention. If as many people payed attention to politics as they do to football, we might actually have a real democracy.

The more restraints put on the Patriot Act the better. But I don't know that the Dems are going to be able to do too much more here unfortuneatly.

Now, if the Democrats were to take power back in two years or whatever, can they ditch it completely? Or does it still apply to the time it expires?


#6

The latest on the politicking:

http://corner.nationalreview.com/05_11_13_corner-archive.asp#082921

SPECTER'S PATRIOT GAMES [Ramesh Ponnuru]

House and Senate negotiators made a deal on the Patriot Act late on Tuesday night. The next day, however, Senate Judiciary Committee chairman Arlen Specter reneged on the deal because Pat Leahy, the ranking Democrat on the committee, didn?t like it.

There are three major issues outstanding. 1) The House had voted to renew several provisions of the Patriot Act for ten years, the Senate for four. The negotiators had split the difference: 7 years. But Leahy wants to re-open the deal to bring that number down. 2) Recipients of national security letters can?t disclose that they have received them. The bill loosens the rule, but creates penalties for breaking it. Leahy doesn?t want any penalties if the rule wasn?t broken with the specific intent of disrupting an investigation. 3) Recipients of the NSLs are supposed to notify the FBI before they contact a lawyer?just in case the lawyer they?re calling is Lynne Stewart or a Mohammed Atta who?s gone to law school. Leahy wants that provision dropped.

Most Republicans aren?t inclined to give ground on these issues. Specter?s Republican colleagues are furious that he?s gone back on his word, but they haven?t been saying anything to the press because they still want to get his signature on a deal.


#7

I'll tell you why I'm less bothered. Because the judges are already there as the oversight - they oversee the cops who are asking for the warrant. Adding a reporting requirement to Congress just becomes a game of "who's watching the watchers." Judicial oversight of warrants seems to work well for regular warrants, and I don't really see adding the reporting requirement for "sneak and peek" warrants as doing much but adding a layer of paperwork.

I do like the 30-day requirement though.


#8

The United States is a republic, not a democracy. And I agree whole heartedly that WAY more people should be involved in the political process.

Even those crazy libs :wink:


#9

Rome was a republic too, and you see what happened to that.

Sorry, I just couldn't resist :wink:

I do agree that way more people should be involved in the political process. Then maybe we will have less of the extremist minorities of the Right/Left running this country into the ground.


#10

There is a lot wrong with the Patriot Act and I think Senator Feingold's additons are a great start in fixing it.

Those who are not familiar. The following are just two things the good Senator wants to change:

"With respect to Section 215 of the Patriot Act, the so-called "library" provision that can be used to obtain library, medical and other sensitive business records, the Senate bill would require the government to convince a judge that a person is connected to terrorism or espionage before obtaining those records.

The bill would also require the government in most circumstances to notify the target of a "sneak and peek" search warrant within seven days of the search, instead of the undefined delay that is currently permitted by the Patriot Act. It would impose new four-year sunsets on three of the most troublesome provisions, and provide recipients of intrusive business records orders and National Security Letters with the explicit right to challenge them in court."

Conservatives (and everyone else) should find plenty wrong with the Patriot Act as it now stands.
If you think that law enforcement will not abuse authority when unchecked think again! These are human beings who make mistakes and need to be kept in line. No different than any other agency with such great authority.

I will never trade liberty for perceived security and I hope everyone feels that way.


#11

Some good perspective on what's going on now with the Patriot Act from GMU law professor Orin Kerr:

http://volokh.com/archives/archive_2005_12_11-2005_12_17.shtml#1134753995

Patriot Act Reauthorization Uncertain:

The Patriot Act reauthorization has passed the House, but is now encountering serious trouble in the Senate ( http://www.cnn.com/2005/POLITICS/12/14/patriot.act/index.html ). According to the latest report, it may be dead in the water ( http://www.cnn.com/2005/POLITICS/12/16/senate.patriot.ap/index.html ), and Congress may let the expiring provisions lapse on December 31st.

For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire. (To be fair, though, I'd have to run through the effect of every expiring section and all of the reauthorization language to check this - maybe I would feel differently if I did.)

Of course, four years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen. For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror. From that perspective, the current debate makes a lot of sense: for opponents, fighting the Patriot Act reauthorization continues the valiant struggle against the evil forces of Big Brother and the out-of-control Bush Administration; for supporters, supporting the Act helps beat Al Qaeda, makes the homeland safe from attack, and helps win the global struggle against terrorism. If neither of these visions bears a particular resemblance to reality, well, hey, no one ever said democracy was perfect. As Boon famously advised Otter, "Forget it, he's rolling."

What will happen in the end? My hope is that the Bush Administration will agree to renegotiate some of the more controversial provisions, addressing some of the opponents' concerns and reaching a compromise that reflects the current political landscape. My sense is that there is still lots of ready room for compromise; for example, the restrictions on sneak-and-peek warrants in the reauthorization are really pretty weak. They can (and should) be strengthened, and it seems unlikely that strengthening them would impact any terrorism cases.

Anyway, it'll be interesting to see what happens. Throw some popcorn in the microwave, sit back, and enjoy the show.


#12

Here's a list of the expiring provisions, with their meaning supplied by the AP:

http://www.cnn.com/2005/POLITICS/12/16/patriot.provisions.ap/index.html

(AP) -- Sixteen provisions of the USA Patriot Act expire December 31 if not renewed by Congress:

Section 201: Gives federal officials the authority to intercept wire, spoken and electronic communications relating to terrorism.

Section 202: Gives federal officials the authority to intercept wire, spoken and electronic communications relating to computer fraud and abuse offenses.

Subsection 203(b): Permits the sharing of grand jury information that involves foreign intelligence or counterintelligence with federal law enforcement, intelligence, protective, immigration, national defense or national security officials

Subsection 203(d): Gives foreign intelligence or counterintelligence officers the ability to share foreign intelligence information obtained as part of a criminal investigation with law enforcement.

Section 204: Makes clear that nothing in the law regarding pen registers -- an electronic device which records all numbers dialed from a particular phone line -- stops the government's ability to obtain foreign intelligence information.

Section 206: Allows federal officials to issue roving "John Doe" wiretaps for spy and anti-terrorism investigations.

Section 207: Increases the amount of time that federal officials may watch people they suspect are spies or terrorists.

Section 209: Permits the seizure of voicemail messages under a warrant.

Section 212: Permits Internet service providers and other electronic communication and remote computing service providers to hand over records and e-mails to federal officials in emergency situations.

Section 214: Allows use of a pen register or trap and trace devices -- a device that records the originating phone numbers of all incoming calls on a particular phone line -- in international terrorism or spy investigations.

Section 215: Authorizes federal officials to obtain "tangible items" like business records, including those from libraries and bookstores, for foreign intelligence and international terrorism investigations.

Section 217: Makes it lawful to intercept the wire or electronic communication of a computer hacker or intruder in certain circumstances.

Section 218: Allows federal officials to wiretap or watch suspects if foreign intelligence gathering is a "significant purpose" for seeking a Federal Intelligence Surveillance Act order. The pre-Patriot Act standard said officials could ask for the surveillance only if it was "the" sole or main purpose.

Section 220: Provides for nationwide service of search warrants for electronic evidence.

Section 223: Amends the federal criminal code to provide for administrative discipline of federal officers or employees who violate prohibitions against unauthorized disclosures of information gathered under this act.

Section 225: Amends FISA to prohibit lawsuits against people or companies that provide information to federal officials for a terrorism investigation.