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 although the end result of the Patriot Act reauthorization process is not perfect, most of the changes made by the two renewal bills provide needed clarity to the original legislation...
Since its inception, the Patriot Act has garnered the harshest of criticism and the greatest of praise. The controversy it created, however, is not unique. It stems from our system's continuous struggle to balance authority properly among the three branches of government. Citizens are often suspicious of any government action that appears too much controlled by a single branch. Most often this suspicion arises when it appears that the executive branch is acting without sufficient "checks and balances." And despite the original Act's express inclusion of checks and balances in the form of both congressional oversight and judicial review, the legislation being signed today provides for more.
Those critical of the original Act have focused almost exclusively on just a handful of the Act's numerous provisions. Unfortunately, this focus drew the public's attention away from the rest of the Act and, as is the way with politics, permitted many to stall the ultimate reauthorization of its expiring provisions. The legislation being signed today worked within this environment to find ways to comfort the Act's critics at least those in Congress in connection with the few most controversial provisions. It provides extra safeguards without significantly hampering use of the relevant counterterrorism tools.
Reauthorization legislation was passed last year by both the House and Senate. Differing in some respects, a conference committee was assigned the task of reconciling the legislation passed by these chambers of Congress. Then late last year a Conference Report was issued that did just that. Many in the Senate remained unhappy with the legislation and though the compromise represented by the Conference Report, H,R, 3199, was passed by the House on December 14, 2005, with a vote of 251-174, the Senate failed to pass it. Indeed, two separate legislative actions were needed temporarily to extend the Act in its original form to permit further work on reauthorization. The Act was first extended until February 3, 2006, and then until March 10, 2006. Now, just a day before this latest deadline, reauthorization is a done deal.
The ultimate result was a second piece of legislation adding to the Conference Report's reauthorization, Senate Bill 2271. The Senate passed this add-on legislation on March 1, 95-4, and, with that in place, then passed H.R. 3199 on March 2, 89-10. With a complete reauthorization package in place in the Senate, the House, having already passed the primary legislation, voted in favor of the additional legislation on March 7, 280-138.
To understand what changes are being made to the original Act, then, requires review of both pieces of legislation. It also requires an understanding that despite all the bitter debates and apparent opposition to the Act, at no time did the majority of either body in the Congress, or public opinion, favor expiration of the sunsetting provisions of the Act. Instead, issues arose primarily around just four provisions Sections 215 (business records), 206 (roving wiretaps), 213 ("sneak and peek" warrants), and 505 (national security letters). And not all of these provisions were even subject to the December 31 sunset. Rather, reauthorization was a review of all controversial provisions, sunsetting or not.
Section 215 permits those involved with counterterrorist investigations to apply to the court created by the Foreign Intelligence Surveillance Act ("the FISA court") for an order to obtain business records. The general intent was to extend into terrorist related investigations the same authority to obtain tangible things as grand juries have in ordinary criminal investigations. Prior to enactment of the original legislation, the ability of counterterrorist and intelligence investigators to obtain tangible things was extremely limited.
Concerns arose, however, about this provision's lack of clear judicial review of (or means of challenging) orders obtained pursuant to it. Criticism also developed as a result of the prohibitions put in place on disclosure by recipients of orders issued under this section, which it was argued could be interpreted to prohibit consultation with an attorney. Moreover, reservations about its scope led to the common mischaracterization of this as the "library records" provision.
The Conference Report being signed today addresses these concerns, requiring a more direct showing of relevance to an authorized investigation prior to issuance of orders by the FISA court. An explicit right of recipients of such orders to consult an attorney is also provided for in the Conference Report. On a more substantive issue, library, medical, educational, and other sensitive records are provided greater protection, requiring the personal approval by specified high ranking officials of any request for an order seeking these sensitive records. And, a new four year sunset is put in place.
The add-on legislation also being signed today goes slightly further in clarifying the judicial review available. It makes explicit the right of a recipient of a Section 215 order to challenge the prohibition on disclosure of the order one year after its receipt. This provision, in effect, provides for non-disclosure but with a time limitation after which the right to disclose may be sought and the FISA court may then permit disclosure where there is no reason to believe such disclosure will endanger national security, endanger ongoing investigations, interfere with diplomatic relations, or endanger the physical safety of any person.
Similar criticisms as those lodged against Section 215 were also made of the use of national security letters (a type of administrative subpoena). Though the Patriot Act did not create national security letters ("NSLs"), Section 505 did make changes to one of several NSL provisions, focusing public attention on the use of NSLs. The opposition to NSLs stemmed from its non-disclosure requirements and related issues regarding disclosure to and consultation with counsel, and a lack of clear judicial review (or enforcement) procedures.
The Conference Report takes the first steps to allay these concerns. It provides an explicit right of recipients of NSLs to consult legal counsel and to challenge NSLs in court. The Conference Report also, however, required a recipient to inform the FBI of any attorney to whom the NSL had been disclosed. The add-on legislation removes this requirement. It also clarifies that libraries are generally not subject to the NSLs covered by Section 505 of the Act. Finally, the Conference Report will now require public reporting on the total number of NSLs issued each year.
Changes are also being made to the original versions of Sections 206 and 213. Section 206 provides for roving wiretaps, permitting the tapping of devices used by a sufficiently identified target rather than of a single device. Prior to the Act, a new order was necessary every time a target used a different communication device, delaying crucial surveillance activities. The Conference Report slightly increases the burden in connection with what information is necessary to identify a specific target for such surveillance, requires new reporting of the use of this section to Congress, and puts in place a new four year sunset.
In connection with Section 213, which confirmed the availability of delayed notice search warrants warrants that permit the government to search an area without removing anything and without providing immediate notice to the person's whose property is being searched the Conference Report establishes presumptive time periods for providing delayed notice. Under this provision, notice must be provided within a reasonable time that is not to exceed 30 days unless a longer time is expressly approved by the court issuing the warrant. Extensions of this time period are available. Like other changes to the original Act, this one addresses concerns relating to the lack of firm standards governing use of the Act's provisions. Reauthorization provided the process through which standards could be developed with the wisdom of four years of use of the relevant provisions.
The end result of the reauthorization process is not perfect. Establishing new sunsets for some provisions is likely to result in continuing uncertainty among law enforcement and intelligence officials about whether the tools they have today will remain in place and, in effect, may negatively impact their desire to become familiar with and use these tools to their full potential. But most of the changes made by the legislation being signed today provide needed clarity to the original legislation. These modifications should convince critics that the Act is not a threat to our liberty but a means of protecting it.
Debates will no doubt continue to swirl around the most controversial provisions. But it is good to know that in the end a balance was sought and achieved -- balancing not only the claimed tug-of-war between security and civil liberties but the balance among our branches of government.
We can only hope that in four years, when Congress again faces sunsetting provisions of this key counterterrorism legislation, it acts more promptly while achieving an equally acceptable result.
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.