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Commentary

"Patriot Act" Renewal Stalls in Congress

By Neema Trivedi

Editor's Note: In March 2006, Congress reauthorized the Patriot Act with only minor changes; see "Patriot" Act Reforms Are Defeated.

INTRODUCTION

FEPP has provided ongoing coverage of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" ("USA PATRIOT") Act.1 This commentary updates the previous ones, and summarizes Congress' efforts to reauthorize those provisions of the law that were set to expire on December 31, 2005. It focuses on the legislative and litigation landscapes surrounding two of the most troublesome provisions of the law - sections 215 and 505.

As described in our October 2005 commentary, §215 gives the FBI power to demand personal transaction, membership, and other records, including library and bookstore logs, that may be related to a counter-terrorism or counter-espionage investigation.2 It also prohibits anyone who receives a §215 order from disclosing that fact. Section 215 orders require authorization from a Foreign Intelligence Surveillance Act (or "FISA") court.3 The FISA court is unusual in that only the government gets to appear; there is no opportunity for the subject of a potential search or seizure to object.

Section 215 is supplemented by §505, which expands the use of an instrument that pre-dates the USA PATRIOT Act: the National Security Letter (or "NSL"). Like §215 orders, NSLs prohibit recipients from disclosing the subject of the letter, consulting an attorney or getting legal advice, or petitioning a court to set aside the letter.4 NSLs are often used instead of §215 orders to demand information from bookstores and libraries because they don't require even the token judicial review of a FISA court.

LEGISLATION UPDATE

A conference committee was convened in the fall of 2005 in order for Congress to resolve differences between the House and Senate versions of the PATRIOT Act reauthorization bill. On December 8, 2005, Congressmen Sensenbrenner submitted the PATRIOT Act Conference Report to the House of Representatives, and six days later, the report was passed by a vote of 251 to 174, with 207 Republicans and 44 Democrats supporting it.5

The Conference Report then moved to the Senate, where several Senators vowed to do whatever was necessary, including filibustering, to prevent its passage, stating it did not have adequate safeguards against civil liberties violations.6 In mid-December, Republicans in the Senate called for a vote to end debate (that is, for "cloture"), but were defeated when they could not muster the 60 votes that they needed.7 The Senate voted instead, with four Republican Senators agreeing with 43 Democrats, that further debate was needed before the Conference Report's version of reauthorization could be passed.8

Opponents of the Conference Report version of the bill then pushed for a short-term extension of the PATRIOT Act to allow for more debate when Congress resumed after the new year. Despite the White House's vow to oppose any such delay, the President was forced to accept the five-week extension agreed upon by both Houses. The "sunset" provisions of the law were set to expire on February 3, 2006. The deadllne was later extended to March 10.9

DESCRIPTION OF THE CONFERENCE REPORT10

Sunset provisions - The compromise bill outlined in the Conference Report makes permanent 14 of the 16 provisions of the original PATRIOT Act of 2001, which had a sunset date of December 31, 2005. Legislators adopted a four-year sunset for the other two provisions - sections 206 and 215, which deal with FISA court orders for the use of roving wiretaps and for access to personal and business records.

Section 215 - Section 106 of the proposed reauthorization law, as published in the Conference Report, would amend §215 of the PATRIOT Act to explain that all tangible things sought by a §215 FISA order must be "relevant" to an investigation of a non-U.S. person or of international terrorist or clandestine activities. This section resembles the "factual basis" standard presented in the Senate bill by requiring that applications for FISA orders include a statement of facts that shows there are "reasonable grounds" for believing that the tangible things sought are relevant to an ongoing investigation.

Yet a key component of the Senate bill was that it limited searches to only those individuals who were suspected of criminal activity. Proposed §106 has no such limitation and applies only a minimal "relevance" standard. Personal records, then, can still be obtained for all non-U.S. persons because they can be reasonably considered connected to a foreign power. Even for U.S. citizens, records may be obtained for people who have no suspected involvement in criminal activity. In its joint explanatory statement, the Conference Committee explicitly affirmed that it did not wish to curtail §215: "Congress does not intend to prevent the FBI from obtaining tangible items that it currently can obtain under section 215."

Section 106 does clarify that recipients of §215 orders may challenge the order in the FISA court system. A single judge would review the petition. Any decision by the judge could be reviewed by the full FISA court and then by the U.S. Supreme Court.

Under the new proposed §215, recipients could also disclose receipt of the order to an attorney or any other person to whom disclosure is necessary in order to comply with the order. Aside from these narrow exceptions, though, the individual is still barred from disclosing anything about the §215 order, and thereby, from effectively participating in the public debate surrounding the PATRIOT Act and its civil liberties implications. In addition, the FBI can demand that the individual let the agency know the identities of all people who were told about the order (but the individual need not tell the agency that he or she intends to consult an attorney).

The compromise bill contained in the Report also says that any §215 order demanding certain sensitive records, such as tax records, book sales lists, library records, or medical records, must be issued by either the Director of the FBI, the Deputy Director, or the Executive Assistant Director for National Security. These last two individuals may not further delegate their authority. This provision is intended to ensure that requests for sensitive records receive the highest level of approval within the intelligence agencies.

Section 106 also provides for new "minimization" standards, to be adopted by the Attorney General, which are supposed to minimize the retention, prohibit the dissemination, and limit the use of information or tangible things obtained through §215 orders concerning "unconsenting United States persons."

Finally, the proposed §106 changes the reporting procedures for §215. As opposed to a semi-annual report given to the Congressional Intelligence Committees, as was established in the original PATRIOT ACT, §106 would require that an annual report be submitted to the House and Senate Committees on the Judiciary in addition to the Congressional Intelligence Committees. This report would have to include a specific section stating the number of orders granted and denied for the production of library records, book sales lists, and other sensitive materials. In addition, the Attorney General would have to submit to Congress an annual unclassified report stating the number of §215 applications submitted, the number granted, and the number denied. A new section - §106A - would require that the Inspector General of the Department of Justice conduct an audit of §215 orders to determine their use and effectiveness, and submit an unclassified report on the results of the audit to the Congressional Judiciary and Intelligence Committees.

National Security Letters - Sections 115-119 of the Conference Report's compromise bill deal with National Security Letters (NSLs). Section 115 would allow recipients of NSLs to challenge both the NSL demand and its nondisclosure requirement in federal district court. The court's discretion to lift the secrecy requirement is limited, however, by the caveat that "if, at the time of the petition," the Attorney General or a variety of other government officials "certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations," then "such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith."

Thus, although NSLs can be challenged in court, intelligence officials still have final say - any meaningful judicial check is hampered by deference to intelligence officials acting on their own discretion. As the Committee's joint explanatory statement explains: "This provision recognizes that the Executive branch is both constitutionally and practically better suited to make national security and diplomatic relations judgments than the judiciary."

Sections 116-117 also relate to the secrecy of NSLs. Like the targets of §215 orders, NSL recipients would be able to disclose their receipt of the NSL to an attorney and to any person for whom knowledge of the NSL is necessary in order to comply. They all must be advised of the secrecy requirement, and the FBI may demand their identities - except that "in no circumstance shall a person be required to inform such requesting official that the person intends to consult an attorney to obtain legal advice or legal assistance." The proposed new §117 sets out penalties for those who violate the secrecy requirements: imprisonment for up to five years, a fine, or both.

Section 118 requires reporting on NSL usage to the House and Senate Judiciary and Intelligence Committees. The Attorney General must also submit an annual report to Congress disclosing the aggregate number of NSLs issued to U.S. persons. Reporting requirements have become even more important since November 2005, when the Washington Post reported that the FBI issues about 30,000 NSLs a year.11

Lastly, like the provision mentioned above relating to §215 orders, §119 of the Conference Report's proposed compromise bill requires an audit of the effectiveness and use of NSLs, to be conducted by the Justice Department's Inspector General. However, unlike with §215 orders, the compromise bill would not establish minimization procedures for NSLs to limit the retention, dissemination, and use of information obtained from the requests.

Other provisions - While our commentaries have focused on the NSL and §215 provisions, the Conference Report has several other sections that are problematic. For instance, the Report allows for an extended 30-day period during which intelligence officials can delay notifying the subject of a court-ordered search that he or she is being or has been searched. That delay can be extended to 90 days or more if authorized by the court (§114). Another particularly worrisome provision is §105, which extends the maximum length of time for which non-U.S. persons can be under surveillance to one year.12

ANALYSIS OF THE CONFERENCE REPORT

Although the Report offers a version of the PATRIOT Act that takes into account the potential for civil liberties violations more than the 2001 version did, the Report still has significant problems. For instance, while the Report's proposed compromise bill requires the submission of a statement of facts to establish that the items requested in a §215 order are relevant to an investigation, it does not address the real concern that the personal library, medical, and tax records of unconsenting individuals with no ties to criminal activity can be accessed by intelligence officials under §215.

Another troublesome aspect of the Conference Report is that it fails to provide any court oversight of NSL issuances. Under the original NSL statutes, FBI officials have the authority to issue NSLs without any prior approval from a judicial body. This remains the case in the Conference Report - to obtain an NSL, an official does not need even the minimal court approval required for §215 orders. This explains why, as mentioned above, the FBI can issue close to 30,000 NSLs a year.

The Report also fails adequately to address the gag rules imposed on recipients of NSL and §215 orders. Recipients are still restricted from participating in the public debate on these issues because they are unable to disclose their actual experiences. The Report, in fact, goes further than the original Act by making it a crime to knowingly disclose receipt of an NSL, with penalties ranging from fines to five years in prison.

Also, while the Report does clarify that recipients may challenge the nondisclosure provisions of NSLs in court, it also states that the mere assertion from an intelligence official that disclosure may endanger an individual, national security, or a terrorism investigation must be deemed conclusive by the court. The court must defer to the very same officials who have issued the NSL in the first place. Needless to say, this system does not provide a meaningful judicial check on the executive's power to impose gag orders and thereby stifle public discussion of its activities.

However, there are some significant changes that could hopefully alleviate the total lack of oversight of the NSL and §215 process that has characterized the past four years. The increased reporting requirements, the establishment of minimization procedures for §215 orders, the explicit statements that recipients can consult with attorneys and challenge §215 and NSL orders in court, and the audit analyzing the effectiveness of both provisions are steps in the right direction. Yet these improvements do not go as far as the original Senate bill did, and in the coming weeks, legislators will attempt to infuse the conferenced version with the much-needed civil liberties protections that were integral to the original Senate version.

LITIGATION UPDATE

The Second Circuit Court of Appeals ordered the consolidation of Doe v. Gonzales, the 2005 Connecticut case challenging the gag provisions of NSLs, and Doe v. Ashcroft, the 2004 New York case challenging NSLs on the basis of the 1st and 4th Amendments. A three-judge panel consisting of Judges Richard Cardamone, Joseph McLaughlin and Barrington Parker, Jr. heard oral argument on November 2, 2005.13

At the oral argument, Jameel Jaffer of the ACLU reiterated the main constitutional problems with NSLs - that the FBI does not need to establish individualized suspicion; and that the permanent gag order is a violation of the First Amendment.14 Douglas Letter of the Justice Department responded that the government has already conceded that recipients may consult counsel and may challenge the NSL in court. Letter also contended that the recipients' First Amendment rights are not in jeopardy because there are no civil or criminal penalties for violating the gag order (a situation that, as we have seen, would change under the proposed PATRIOT ACT reauthorization).15

Judge Cardamone expressed concern about the permanence of NSL gag orders: "The troubling aspect from my standpoint is that there is no limit." He explained that a statute "which forces recipients to take the secret 'to the grave,'" is "contrary to the values of an open society." Judge Parker, on the other hand, seemed satisfied with Letter's claims that judicial review of NSLs is already allowed, and that the Congressional reauthorization bills resolve any confusion on this point by explicitly stating that such review is an available option for NSL recipients.16

We are awaiting a ruling.
Update: On September 6, 2007, U.S. District Judge Victor Marrero agreed with the ACLU and issued a final ruling that the amended NSL law violates the First Amendment because "it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is not a sufficiently narrowly tailored restriction on protected speech."17

January 10, 2006
Updated February 10, 2006, September 6, 2007

NOTES

1. Public Law 107-56, 2001 H.R. 3162. For the text of the Act, see http://news.findlaw.com/cnn/docs/terrorism/hr3162.pdf (visited 10/3/05). For our previous commentaries, see May 2003, August 2003, and October 2005.

2. 50 U.S.C. §1861 (a part of the Foreign Intelligence Surveillance Act), as amended by USA PATRIOT Act §215.

3. 50 U.S.C. §1861 requires that §215 orders be approved by a secret FISA court. FISA courts were created by 50 U.S.C. §1803. which authorizes the Chief Justice to appoint eleven FISA court judges, who serve for a maximum of seven years.

4. NSLs are authorized by 18 U.S.C. §2709, 12 U.S.C. §3414, and 15 U.S.C. §1681u, as amended by USA PATRIOT Act §505.

5. "Sensenbrenner Applauds House Passage of PATRIOT Act Conference Report," U.S. House of Representatives Committee on the Judiciary News Advisory (Dec. 14, 2005), http://judiciary.house.gov/media/pdfs/patriotfinalhousepass121405.pdf (visited 1/4/06).

6. David Stout, "House-Senate Panel Reaches Agreement on Patriot Act," New York Times (Dec. 8, 2005), http://www.nytimes.com/2005/12/08/politics/09cnd-patriot.html (visited 1/4/06).

7. David Stout, "Supporters of Patriot Act Suffer a Stinging Defeat in the Senate," New York Times (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/16cnd-patriot.html (visited 1/4/06).

8. American Booksellers Foundation for Free Expression, "Reader Privacy Advocates Block PATRIOT Re-authorization," ABFFE Update (Dec. 22, 2005), http://www.abffe.org/update12-22-05.html (visited 1/4/06).

9. "Patriot Act Extension Pared Down," CBS News/AP (Dec. 23, 2005), http://www.cbsnews.com/stories/2005/12/22/politics/main1156846.shtml (visited 1/4/06); Sheryl Gay Stolberg, "Key Senators Reach Accord on Extending the Patriot Act," New York Times (Feb. 10, 2006), A14.

10. Information in this section comes both from the text of the Conference Report itself, http://www.fas.org/irp/congress/2005_rpt/hrpt109-333.html (visited 1/5/06), and from the "Joint Explanatory Statement of the Committee of Conference," http://www.fas.org/irp/congress/2005_rpt/hrpt109-333-stat.pdf (visited 1/5/06).

11. Barton Gellman, "The FBI's Secret Scrutiny," Washington Post, p. A01 (Nov. 6, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/11/05/AR2005110501366.html (visited 1/5/06).

12. For more information on other problematic provisions of the Conference Report, please see "ACLU Memo to Interested Persons Regarding the Conference Report on the USA PATRIOT Improvement and Reauthorization Act of 2005," (Dec. 7, 2005), http://www.aclu.org/safefree/general/22384leg20051207.html (visited 1/5/06).

13. "ACLU Urges Federal Appeals Court to Uphold Two Rulings Blocking FBI's Use of Patriot Surveillance Power" (Nov. 2, 2005), http://www.aclu.org//natsec/gen/21191prs20051102.html (visited 1/4/06). For detail on these two cases challenging NSLs, see our October 2005 commentary.

14. Mark Hamblett, "USA PATRIOT ACT - 2nd Cir. Faults National Security Letters," The National Law Journal (Nov. 7, 2005), p. P15.

15. Id.

16. Id.

17. ACLU v. Gonzales, No. 04-2614 (S.D.N.Y. Sept. 6, 2007), p. 101, available at http://www.aclu.org/pdfs/safefree/nsldecision.pdf.

The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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