By Greg Nojeim; Senior Counsel and Director, Project on Freedom, Security & Technology; the Center for Democracy & Technology
The Senate Judiciary Committee yesterday approved legislation to reauthorize the three expiring provisions of the USA PATRIOT Act and in the process rejected key amendments to restore civil liberties damaged when the Act was first adopted a few weeks after 9-11. The Obama Administration's opposition to civil liberties protections played an important role in this disappointing outcome.
The Committee failed to adopt any meaningful limits on National Security Letters (NSLs). Under the Patriot Act, FBI agents can use NSLs, without the approval of a judge, to obtain sensitive financial and communications records about anyone, even people suspected of no wrongdoing, solely on the claim of an FBI official that the information is "relevant" to an ongoing investigation. Earlier I wrote about an amendment that would have ensured that NSLs could be used to obtain sensitive personal information only if there was some reason to believe that the information pertained to a foreign terrorist or spy or somebody in contact with or known to such a person. That's not a very exacting requirement - and the amendment under consideration didn't even go so far as to require judicial approval - but still the Committee rejected it yesterday.
Instead, Senators opted for the more permissive "relevance" standard in current law. After a protracted debate, the Senators adopted a requirement that government agents write down specific facts showing that the information sought was relevant to an investigation. But that addition offers little protection, especially since intelligence investigations can be very broad and no one outside the FBI reviews the claim of relevance anyhow. The better way to focus intelligence resources would have been to ensure that the government was collecting information about potential bad actors and anyone tied to such people. Absent this minimal grounding, abuses and misuses of NSL authority identified by the DOJ's own Inspector General will persist.
Perhaps most surprising and troubling about the Judiciary Committee action was the role of the Obama Administration, which opposed civil liberties protections that were even weaker than the civil liberties protections Barack Obama favored as a Senator. As but one example, as Senator, Obama signed a letter calling for an amendment that would have said that the related authority in Section 215 of the Patriot Act to obtain a court order for any "tangible things" could have been issued only for records pertaining to a suspected spy or terrorist or someone tied to a suspected spy or terrorist. Senator Obama also co-sponsored a bill with an even stronger standard. Despite Senator Obama's history of favoring strong standards in the Patriot Act, President Obama's Administration persuaded Judiciary Committee members to reject even limited improvements.
This is not to say that the bill the Senate Judiciary Committee just approved (S. 1692) diminishes civil liberties protections in current law. In fact, it enhances those protections, albeit in small ways. It shortens from 30 to seven days the period during which the government can delay notice when it conducts a "sneak and peek" search to find evidence of crime. It imposes minimization requirements on NSLs to limit the dissemination to other agencies of personally identifiable but irrelevant information about Americans obtained with an NSL. It takes significant steps to bring the NSL gag provision in line with the First Amendment by providing for a more meaningful judicial review. It requires accountability measures that could uncover abuses, including Inspector General audits of the use of NSL and Section 215 authority, public reporting about the number of people subjected to FISA surveillance, and new sunsets that may prompt members of Congress to ask tough questions about use of Patriot Act powers when reauthorization is sought.
But, when it comes to the most important issue - requiring strong standards for access to records about Americans and appropriate judicial review when those records are sensitive - the Senate bill falls short. We can only hope that the House Judiciary Committee will do better.