The Important But Flawed USA Patriot Act: Why Congress Should Allow Certain Provisions to Expire This Year

On December 31, sixteen portions of the USA Patriot Act are set to expire - or, in legal parlance, "sunset." Currently, Congress is holding hearings on the Act. It is considering, among other issues, whether to amend it to curb the broad surveillance powers the Act bestowed on the federal government.

For example, under the Act, the government can now monitor an individual's web surfing records. It can use roving wiretaps to monitor phone calls made by individuals "proximate" to the primary person being tapped. It can access Internet Service Provider records. And it can even monitor the private records of people involved in legitimate protests.

After September 11, 2001, when the Act was passed, the Executive argued that these broader powers would be used to put terrorists behind bars. In fact, several of the Act's provisions can be used to gain information about Americans in the context of investigations with no demonstrated link to terrorism.

For this reason, I will argue, the Act should be amended. The USA Patriot Act as a whole includes important powers. But as written, the Act goes far beyond its justification: terrorism prevention.

In this column, I will focus on just a few of the Act's sunsetting provisions - each of which, in my view, should be repealed or, at a minimum, allowed to expire this December.

(Section 212, regarding emergency disclosure of consumer records, has been amended by Section 225 of the Homeland Security Act (HSA) of 2002, which is not sunsetting. Accordingly, although I believe this section is very problematic, as I discussed in an earlier column, I will not discuss it here).

The Burden of Proof, and the Limited Information Available

Before I consider these sunsetting sections of the Act, I will first consider what burden of proof should apply, and what information is available to help us evaluate the Act's use.

In its final report, the 9/11 Commission recommended that President Bush should bear the burden of proof to show that Congress ought to renew the Act provisions that are subject to "sunset" limitations. Specifically, the Commission recommended that the provisions be allowed to sunset unless the President can show that each power actually materially enhances security, and that there is adequate supervision of the use of such powers to ensure that civil liberties are protected.

In many cases, based on the information that has so far been made public, it is clear that such a showing cannot be made. Moreover, the Executive Branch should make more information public before Congress decides.

The FBI and the Department of Homeland Security have provided anecdotal information about the law's use, but some politicians have rightfully grown frustrated with the lack of detailed information.

For instance, Senator Jon Kyl (AZ-R) has released a file indicating that requests to the Justice Department "to provide a comprehensive report" on the "provisions of the Patriot Act subject to 'sunset' remain unfulfilled." However, as Kyl's file adds, "Such a report is a critical element in [Congress'] responsibility to provide meaningful oversight before determining whether to change the law with respect to these provisions."

The Department of Justice should provide Congress with full accountings of how the government has used its newfound authority under the Patriot Act. But as I will explain, even the information we have so far provides reason enough to cause Congress to either allow these sections to "sunset," or, at a minimum, significantly amend them.

The Pre-Patriot Act Surveillance Regime: It Respected Fourth Amendment Rights

Our legal system has long separated foreign-intelligence-gathering from domestic criminal enforcement. But under the USA Patriot Act, the distinction is significantly blurred.

Before discussing that blurring, though, it's worth noting how clear the distinction was before the USA Patriot Act was enacted into law. At that time, the law struck a fine constitutional balance when it came to electronic surveillance. Since then, that balance has been destroyed.

In1978, the FISA (Foreign Intelligence Surveillance Act) established a court - known as the FISA Court - with power to issue secret warrants. The purpose of these warrants was to aid in intelligence-gathering, with a view toward preventing espionage and terrorism.

Thus, the statute made clear that "the purpose" of FISA-warrant-authorized surveillance would be solely to gather foreign intelligence. And to procure such a warrant, the government had to convince the FISA court there was "probable cause" that the surveillance target was a foreign power or an agent of a foreign power.

The contrast between this standard, and the standard applicable in federal domestic criminal cases was stark. Under the Fourth Amendment, in federal domestic criminal cases, a warrant to intercept a communication or a search warrant must be based on "probable cause" to believe that a crime has been or is being committed. If a prosecutor could convince a federal judge that such probable cause existed, a warrant would be issued in a domestic federal criminal case.

The contrast between FISA surveillance and surveillance in regular criminal investigations is stark too. First, there is the secrecy: The targets of FISA surveillance are never notified that they were spied on. In contrast, a domestic criminal defendant gets a copy of the warrant so that he can challenge its legality under the Fourth Amendment, contending that because "probable cause" was lacking, the fruit of the search should not be admitted as evidence in federal court.

Second, there is the lack of clear precedent. The FISA court does not publish its decisions and procedures, as other federal courts do. So unlike in other federal courts, in the FISA court, there is no way for defendants and their attorneys to know how the court interprets the legal standards it applies. Nor is there a way for them to argue that the courts is departing from its own, or a higher court's, binding precedents - an important litigation tactic for federal criminal defense attorneys.

Third, and finally, there is the lack of recourse. There is no clear way to challenge FISA-authorized surveillance - the court doesn't even have a public address. In contrast, federal criminal defendants, again, may move to suppress the evidence that results from a warrant that is not supported by "probable cause."

Section 218: It Should Be Amended to Preserve Fourth Amendment Rights

The USA Patriot Act blurred the key contrasts between foreign-intelligence-gathering and domestic law enforcement. Now, intelligence-gathering need not be the sole purpose of FISA-warrant-authorized surveillance.

Instead, as a result of Section 218 of the PATRIOT Act, intelligence gathering need only be "a significant purpose" of FISA-authorized surveillance.

The result has been that not just CIA agents, but FBI agents as well - or even state police, cooperating with the CIA and FBI - have the ability to utilize FISA's secrecy and lower legal standards. No longer must they prove "probable cause" that a crime has been, or is being, committed - as the Fourth Amendment requires.

Instead, all they have to prove is that foreign intelligence is a "significant" purpose of the surveillance. Another purpose can be domestic law enforcement.

As I pointed out in an earlier column, the result is to to open the door to an end run around Americans' Fourth Amendment rights. Unable even to see the basis for the secret FISA warrant that authorized a search of their home or business, Americans may not be able to challenge that warrant in a criminal procedding.

Given that FISA warrants allow federal agents to avoid Fourth Amendment challenges, its no surprise that they are being used more and more frequently. Indeed, some data indicates that there is now more surveillance being authorized by the FISA court, than by all the other federal courts, in the fifty states, combined.

Clearly, the new "significant purpose" standard invites is problematic.. Granted, there may be some circumstances in which domestic criminal investigations are genuinely connected to foreign intelligence, so that the "sole purpose" standard is too limiting for law enforcement.

For instance, suppose that an investigation focused on surveillance of spies also uncovers a domestic plot by Americans to forge pilot's licenses in service of domestic terrorism - in a sort of September-11-meets-Oklahoma-City scenario. In that kind of situation, it could be appropriate for a FISA warrant to cover the whole investigation, even though "foreign intelligence" was not its sole purpose.

But these situations are few and far between. Even if the "sole purpose" standard is not reinstated, the "significant purpose" standard should be clearly limited by the requirement of a nexus to terrorism on the domestic side. The FISA Review Court, in a historic first decision, previously stated that "the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes." As I asked before, however, what about loosely related ordinary crimes? Will law enforcement be able to bypass the Fourth Amendment when it comes to them, too?

Also, it might be possible that for terroristic crimes, even those with no connection to foreign intelligence, Fourth Amendment standards should be different. But that is a question for the courts, not for Congress, to answer.

Section 218 is scheduled to expire at the end of 2005. New legislation, however, has been introduced to make the provision permanent. Section 218 should either be amended now, or allowed to expire in December.

Section 215: Why The "Librarian's Nightmare" Provision Should Be Amended

Also controversial is Section 215 of the Patriot Act. It allows the FBI to gain records or other "tangible items" from any person or organization, if the FBI claims a link to an ongoing terrorist or foreign intelligence investigation.

As with a FISA warrant, secrecy is the key here. Section 215 gags those who receive an order to produce such items or records. Disclosing the order's mere existence can be punished by imprisonment.

The First Amendment and Fourth Amendments concerns here are clear; I have discussed them in a prior column. The rights to freedom of speech, and against unreasonable searches and seizures, are significantly curtailed when the government forces churches, hospitals and others to turn over their patrons' records.

Prior to the Patriot Act, the FBI had access to only a few types of records that were of particular use in investigating terrorists and spies: those belonging to hotels, motels, car and truck rental agencies, and storage rental facilities.

But after Section 215, the FBI may seek any tangible item -- "including books, records, papers, documents, and other items" -- regardless of who holds it. Even the most sensitive medical tome, the most partisan political tract, or the most closely-guarded membership list is fair game. And this is true even if the book or list resides in a trusted public library, in the night-table of a private home, or in a sacred religious building.

Prior to the Patriot Act, in order to get even the limited categories of records that were eligible, the FBI had to present to the FISA court "specific and articulable facts giving reason to believe that the person to whom the records pertain[ed]" was a spy or terrorist.

Under Section 215, the FBI now need no longer make this showing. It need not, in other words, show that there is "probable cause" -- specific facts to support the belief that a crime has been, or will be, committed, or that the items sought are evidence of a crime.

In sum, the government now need not show that there is a link between the person whose records it is accessing, and any crime - let alone a crime of terrorism.

All the FBI has to do is certify that there is some link between its subpoena and a terrorism investigation, in order to get a secret warrant for the most personal, private, or party-political items. And there is no one to second-guess the certification: The FISA court must issue the order if the FBI so certifies, even when there are no facts to support the assertion.

An Especially Troubling Part of Section 215: Targeting Based on Speech and Religion

Under Section 215, the FBI can investigate United States persons (citizens and legal residents) based at least in part on their exercise of First Amendment rights. Thus, an American could be investigated based on the political or religious meetings he attends, the websites she visits, or even the books that he reads. As a result, Americans may be chilled from exercising these constitutional rights in the first place.

Under Section 215, in addition, the FBI can investigate non-U.S. persons based solely on their free speech activities or their religious practices. In other words, Section 215 as much as authorizes religious discrimination against non-citizens.

Some reports indicate that already, attendance at, and donations to, mosques have dropped significantly - for many Muslims reasonably fear that they will be targeted for investigation based solely on their religious beliefs.

Are Amendments and Self-Imposed Limits on Section 215 Enough?

In September 2003, the Department of Justice reported that it had never used Section 215 to seek business records. However, the Department now reports that federal judges have granted thirty-five requests for Section 215 orders as of March 30, 2005.

The orders were used to obtain driver's license records, public accommodation records, apartment lease records, credit card records, and telephone subscriber records for phone numbers captured under PEN register and trap-and-trace authority. (A PEN register records the numbers of those who communicate via a particular phone line.)

These disclosures are supposed to be comforting, for no library records have yet been subpoenaed. But remember, there's no guarantee it won't happen in the future, and the Department of Justice is making no promises. Self-policing is not enough - especially in a system of which secrecy is a large component.

Reportedly, Attorney General Gonzales is prepared to announce he will accept two amendments to Section 215. But again, these amendments - while improvements -- are not enough.

The first amendment would allow the subject of a records search to consult with an attorney and to challenge the search warrant in court. But these changes would only partially combat the chilling effect on free speech and free exercise of religion: Americans would still know their most personal records were fair game, even if they were not the subject of the investigation, but only of the search.

The second amendment would limit any request for records to those "relevant" to a national security investigation. That standard currently applies to grand jury subpoenas issued in ordinary criminal probes. As with the first amendment Gonzales has blessed, this would be an improvement. But again, the chilling effect may persist - and searches could continue to affect the records of non-targets of the investigation.

Checks and Balances: The SAFE Act, Transparency and Sunsetting

A more effective solution has been proposed by a new coalition of liberal, conservative, and libertarian groups called the Patriots to Restore Checks and Balances (PRCB). The coalition's members include the ACLU, the American Conservative Union, Gun Owners of America, and the Libertarian Party. Its aim is to preserve civil liberties while at the same time preserving America's power to combat terrorism.

PRCB supports a bipartisan piece of legislation -- the Security and Freedom Enhancement (SAFE) Act. The SAFE Act would amend the Patriot Act to add key checks and balances. For instance, under SAFE, the government could not access Americans' sensitive, personal information without justification - even if third parties held these records. SAFE would thus address the "chilling effect" of making such information broadly accessible.

In addition, the pre-PATRIOT Act FISA "probable cause" requirement should be restored by allowing Section 218 to expire. Recall that this isn't "probable cause" to believe a crime is being committed (as in the case of domestic law enforcement); it's the requirement that a warrant cannot be issued unless there exist specific and articulable facts giving reason to believe that the party whose records are sought is a foreign power or an agent of a foreign power, such as a spy or an international terrorist. Since FISA is meant to target only espionage and terrorism, that is an appropriate limitation.

Unless a solution like SAFE's is adopted, the USA Patriot Act will continue to curtial civil liberties even where terrorism is not involved. That is unacceptable - and should worry every American who cares about the First or Fourth Amendment.