I know there are political realities for the Senate Judiciary Committee members, but they ought to get over their apparent fear of "looking soft on terrorism," and realize that the best weapon we have to fight terrorism is to uphold the Constitution. This Thursday, the Senate Judiciary Committee is slated to continue last week's markup on legislation reauthorizing three Patriot Act-related provisions set to expire at the end of this year: the "business records" provision (Section 215), which allows the government to obtain any tangible thing relevant to a national security investigation, the "lone wolf" provision, which gives the government unprecedented authority to investigate people with no evidence of a nexus to terrorism, and the "john doe" roving wiretap provision, which allows a wiretap without requiring the government to name the target or phone to be tapped. The Justice Department and the FBI have painted these powers as crucial tools in the fight against terrorism, even though the lone wolf provision has never been used. Now is the time to put some much needed privacy protections into the (un)PATRIOT Act.
The real opportunity for this Thursday’s Senate Judiciary Committee markup is to fix the tremendous expansion of the government’s ability to obtain personal information (phone records, financial records, credit reports, etc.) using National Security Letters (NSLs) with no meaningful court oversight so long as the government claims the information is "relevant" to an authorized investigation. This ridiculously broad relevance standard has led to widespread abuse of the NSL power that was documented in two DOJ Inspector General Reports(available here and here). One offensive example documented in the DOJ IG's section 215 audit being when the FISA court denied access to information under section 215 on First Amendment grounds, the FBI went around the court and used an NSL to obtain the information. Further, the Second Circuit in Doe v. Holder held that the NSL non-disclosure provision, which gags the recipient of an NSL, violated the First Amendment. Thursday’s markup is the Senate Judiciary Committee’s chance to fix the NSL power, protect Americans’ privacy, and point the FBI in the right direction, away from innocent Americans and towards terrorism suspects.
As I blogged about a couple weeks ago, Senators Feingold and Durbin have wisely taken this opportunity to introduce a broad Patriot Act fix bill, the JUSTICE Act (S. 1686), and have garnered substantial support from key civil liberties and privacy groups. The Feingold-Durbin bill contains important fixes that would focus NSL power on persons the government suspects of criminal activity. Further, the Obama Administration, despite its disappointing support for reauthorizing all three expiring provisions, has signaled openness to discussing adding privacy protections.
Senators Leahy and Kaufman also introduced a fix bill (S. 1692). It was not as broad as the Feingold and Durbin bill, but still contained some good protections, and was on the Senate Judiciary Committee’s markup schedule last week. Unfortunately, Senators Leahy and Feinstein submitted a substitute at last week’s markup that eliminated key privacy protections in the original bill. In particular, the original Leahy-Kaufman bill required that the government demonstrate a nexus to an agent of a foreign power to obtain section 215 FISA court orders for "any tangible thing." For a mysteriously secret reason regarding an ongoing investigation (that Senator Durbin was vocally uncomfortable with), the Leahy-Feinstein substitute removed the more stringent section 215 standard for all information except library records. And, despite the fact that during the 2005/2006 reauthorization debate, the higher section 215 standard passed out of Senate Judiciary on an 18-0 vote, only FOUR Senators voted for an amendment to put the higher standard back into the bill. The only real glimmer of light from last week came when an Amendment to put a sunset on the controversial NSL provisions passed.
The Senate Judiciary Committee must do better this Thursday. Taking the Executive branch’s word that it needs information did not work for NSLs, and odds are, it will not work for section 215 or the other expiring provisions. Now is the time to put in judicial oversight protections. Reauthorizing these PATRIOT Act provisions without adding meaningful protection for Americans’ privacy will hinder U.S. counterterrorism policy by allowing the same kind of waste, fraud, and abuse we saw with NSLs. I know there are political realities for the Senate Judiciary Committee members, but they ought to get over their apparent fear of "looking soft on terrorism," and realize that the best weapon we have to fight terrorism is to uphold the Constitution.