In a 16-10 party-line vote on Nov. 5, the House Committee on the Judiciary approved H.R. 3845, the USA PATRIOT Amendments Act of 2009. The legislation contains several important reforms of controversial surveillance powers granted in the wake of the 9/11 terrorist attacks. Republicans on the committee claimed that "the legislation would hinder law enforcement and intelligence agencies in fighting terrorism."
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act) was first passed by a landslide after the 9/11 terrorist attacks to provide law enforcement and intelligence agencies additional powers to thwart terrorist activities; it was reauthorized in 2005. The legislation has been criticized by many from across the ideological spectrum as “one of the most significant threats to civil liberties, privacy and democratic traditions in U.S. history” and as unconstitutional, with certain provisions violating the rights of innocent persons, especially under the First, Fourth, and Fifth Amendments.
Judiciary Chair John Conyers (D-MI), along with Reps. Jerrold Nadler (D-NY), and Robert Scott (D-VA), introduced H.R. 3845 to reevaluate the PATRIOT Act, as several of the law’s provisions are due to expire at year’s end. The bill contains several significant reforms of the powers granted under the original PATRIOT Act. Conyers described the goal of the legislation as “craft[ing] a law that preserves both our national security and our national values.” The Obama Justice Department has encouraged the reauthorization of all provisions.
Among the most touted of the reforms provided by the bill, H.R. 3845 would permit the so-called “lone wolf” provision to sunset. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking. The Justice Department maintains the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Others have likened it to “aim[ing] a Howitzer at a gnat,” when pre-existing powers are more than adequate to monitor suspected terrorists. “[Law-enforcement and intelligence agencies] didn't need new ‘lone wolf’ powers; they needed to understand the powers they already had," said Julian Sanchez in a recent Reason Magazine commentary.
Opponents of the lone wolf provision also believe that existing Title III criminal surveillance and FISA authorities are more than sufficient to attain the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.
H.R. 3845 also restricts the use of national security letters. According to a Congressional Research Service report from Oct. 28, available through the Federation of American Scientists, “National security letters (NSL) are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”
Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, they overuse the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use, as the relevant agency would need to demonstrate to a judge the connection to foreign actors, as well as the need for a gag order, prior to issuing the NSL.
In other reform provisions, the legislation would require the government demonstrate to a judge that the target of a roving wiretap is a single person in order to obtain a warrant. An even stricter evidentiary standard is mandated to obtain library and bookstore records. The roving wiretap and records seizure authorities are set to expire at the end of 2013 rather than in 2009.
The House bill also establishes new reporting and audit provisions to facilitate congressional oversight of surveillance.
With the committee stage completed, passage of strong reform legislation is likely in the House. However, the bill approved by the Senate Judiciary Committee in October contains much more modest reforms, would retain the lone wolf provision, and is, in general, much more in line with the wishes of the administration. Should both bills pass and go into conference to be reconciled, it is unclear which approach would prevail.
Conyers urged Congress to seize the opportunity that reauthorization presents to reform the law. He said, "With several provisions of the Patriot Act expiring at the end of this year, we have the opportunity to fix the most extreme provisions of that law and provide a better balance. Our legislation passed today preserves government legal powers where they are needed most, but reins in some of the most problematic aspects of existing law."