JURIST Special Guest Columnist Wendy J. Keefer, former senior counsel and chief of staff in the US Department of Justice Office of Legal Policy and now with Bancroft Associates in Washington DC, says that the US Senate should join the House in quickly approving reauthorization of the USA Patriot Act to secure both public safety and key civil liberties safeguards...
After four years with no verified abuses of its provisions and its proven effectiveness at preventing additional attacks in this country, it is time to stop playing politics with our national security. The legislation recommended by the Conference Committee strikes the right balance -- alleviating genuine, though in many cases unsubstantiated, fears about the original Act's impact on civil liberties while ensuring our law enforcement and intelligence agencies have the tools they need to combat terrorism.
In October 2001, just six weeks after the September 11th attacks, Congress overwhelmingly, and with bipartisan support, passed the USA PATRIOT Act. Undoubtedly, the quick passage of the Act may have seemed an exercise in legislative haste. Yet at the heart of the Act was a paradigm shift that had been debated for years within the agencies impacted. Great care was taken to craft legislation that would shift the paradigm within which law enforcement and intelligence agencies operated from one of prosecution to one of prevention. That paradigm shift also required and received painstaking attention to ensuring any legal changes made preserved the very thing for which we are engaged in the war on terror and why we were attacked: the preservation of civil liberties and freedom.
Recognizing the significance of the paradigm shift to be affected, in part, by this legislation, a decision was made to include for several provisions a four year sunset. Though Congress has oversight even over laws with no sunset, sunsetting several provisions of the Act ensured a thorough review of the Executive Branch's use of those new tools and guaranteed a comprehensive public debate about our intervening experiences in this new kind of war. Unless Congress namely the Senate -- acts prior to December 31, these provisions automatically expire, making them unavailable tools for law enforcement and intelligence officers.
The debate over these provisions has ensued since 2001. This year alone prompted by the reauthorization deadline Congress has held 23 hearings and heard from over 60 witnesses. This oversight confirms the good news about this legislation: it has been critical to preventing terrorist attacks and there has been no verified abuse of its provisions. Despite this successful record, the new legislation includes numerous additional privacy and civil liberties safeguards. Whether these safeguards are actually required, they should provide the public with added comfort that the government is working to prevent terrorism without sacrificing our founding principles and privacy guarantees.
No doubt the ensuing years between the Act's original passage and the current debate have identified provisions in need of clarification. The present legislation provides the needed fix; there is no reason for further delay.
Several of the most controversial provisions of the USA PATRIOT Act are subject to new sunsets in the pending legislation. An additional four-year sunset would be imposed on Section 206 regarding roving wiretaps, Section 215 often disappointingly referred to as the "library records" provision, and the "lone wolf" provision.
Amendments are expected in connection with Section 206. In this age of disposable cell phones, satellite phones and constantly advancing communications technology, the original Act altered existing law to accommodate these new technologies. Permitting "roving" wiretaps based on a description of the target but not specifically identifying the location or facilities to be targeted for surveillance, Section 206 gave investigators what was necessary to keep pace with the terrorists and the new technologies they use. The primary concern with this section was the lack of specificity required in the identification of the individual to be targeted for surveillance. The reauthorizing legislation, therefore, requires where a positive identification cannot be provided a description of the target that is sufficiently specific to ensure that only one person is indeed targeted.
Similarly clarifications to Section 215 exist to clarify the scope of that provision. Section 215, the business records provision, extended the authority of FISA courts to order production of business records to include any tangible item sought for an investigation to obtain foreign intelligence information. Section 215 was limited in that it did not permit the issuance of such orders concerning U.S. persons or where the investigation was based solely on activities protected by the First Amendment to the Constitution.
Despite the safeguards included in the original provision, it is perhaps the most vilified part of the original Act. For that reason, clarity has been sought as to the standard to be applied by the courts in determining whether to issue orders for the production of business records, which records may include but to date have never included actual library records. The pending legislation provides the necessary clarity -- specifying that courts should only issue production orders where it is shown the documents or other tangible items sought are relevant to the foreign intelligence investigation.
In addition, as the original provision was intended to provide the same ability for intelligence investigators to gain information as has been held by grand juries in criminal investigations, the legislation would prohibit the issuance of court orders where the item sought could not be obtained by a grand jury subpoena. Moreover, to alleviate the library concern, the sign-off of a high-level Justice Department official would be required before investigators could request a court order under this provision that would result in the production of certain sensitive records, including library records.
The "lone wolf" provision permits the use of FISA surveillance, search and other authorities in the case of a foreign national not a U.S. person even where that individual may be engaging in international terrorist activities on behalf of a person or entity that does not constitute a "foreign power." Prior to the 2001 change in this law, those such as al Qaeda members who sought to commit terrorist acts for that group rather than for a recognized foreign power could not be subjected to the same investigative techniques as state-sponsored terrorists.
The types of changes that would be made to these and other provisions of the PATRIOT Act in the reauthorization legislation address concerns voiced about the Act since its 2001 passage. But none of these additional safeguards will be put in place without passage of the pending bill. Perhaps more troubling, a failure to pass a reauthorization bill promises to halt and disrupt ongoing counter-terrorism activities and put the United States and her citizens at the same disadvantage in terms of technology and techniques that faced this country prior to September 11th.
Delay is too dangerous a political maneuver in this stage of the political process. The House has acted. It is now time for the Senate to act to ensure no gap in America's safety and security.
Wendy J. Keefer is a lawyer with Bancroft Associates in Washington DC. She previously served as Chief of Staff to the Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice