If you missed the thoroughly depressing PATRIOT Act hearing today, this was one of two highlights. Listen carefully at 17 seconds where someone who sounds like Pat Leahy sighs, “Oh boy.”
The rest of the hearing featured Democrat after Democrat arguing that we need to develop lists of all the potential suspects out there buying acetone and hydrogen peroxide.
In the markup of the PATRIOT reauthorization last week, Dick Durbin and Russ Feingold repeatedly pointed out that in 2005, the Senate Judiciary Committee had unanimously approved language to require Section 215 only be used with people who had some known tie to terrorism or a foreign power. Back then, everyone on the Committee supported the change Durbin and Feingold have been proposing as an improvement on Section 215.
Now, Durbin and Feingold did so to point out the indefensible position of those who–like DiFi–said in 2005 that the current and proposed law amounts to an invitation for a fishing expedition, but are nonetheless insisting on issuing just such an invitation now.
But that doesn’t explain how it happened that, sometime between the Committee markup and the final bill in 2005-6, real limits on the use of Section 215 were eliminated over the apparent objections of the entire Committee. And while I’m just beginning to piece together that story, the history seems to support my suspicions that Section 215 and NSLs became the new vehicles for Bush’s illegal data mining program just as it was being exposed.
The primary bill that became the Patriot Improvement and Reauthorization Act of 2005 was HR 3199, introduced by Jim Sensenbrenner, then-Chair of the House Judiciary Committee, on July 11, 2005; in addition, then-Chair of the Senate Judiciary Committee Arlen Specter introduced S 1389 on July 22, 2005.
Sensenbrenner’s bill introduced the following language into Section 215, requiring that,
the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.
That is, when this was introduced in the House, it basically allowed Section 215 to be used for anything, provided it pertained to international terrorism. That language remained in the bill through the House Judiciary and House Intelligence Committee markups of the bill and was adopted by the House as a whole.
But the Senate substituted its own bill, including the language limiting Section 215 orders to those with a definitive tie to terrorism or foreign intelligence, specifically requiring the judge to make sure there was some kind of tie.
I wanted to pull together the discussion in Thursday’s PATRIOT Act Hearing regarding the use of authorities within it–particularly Section 215–in existing investigations. DiFi initiates this discussion by referring to the "biggest investigation we’ve had since 9/11" (note, contrary to my earlier post, this reference is only implicitly related to the Zazi arrest.
DiFi (47:00): My concern was that nothing we do here interfere adversely with an investigation that’s going ongoing. I happen to believe that the biggest investigation we’ve had since 9/11 is currently ongoing and do not want to do anything to disturb it. Second, I believe that finally, the intelligence in the transformation or transfiguration of the FBI is now taking hold and that we are developing an intelligence mechanism within the country that is now able to ferret out some of these proposed attacks before they might happen. And I think the arrest of Mr. Zazi is demonstration of that. It is not ended and the investigation continues on. I also believe that we continue to face the very real threat of international terrorism. There are people who would hurt us grievously if they have an opportunity to do so, so again, I think it’s vital that we not take any action, especially at this time that would hinder the government’s ability to detect, investigate, and prosecute those who are intent on killing innocent Americans.
Note, too, DiFi’s reference to the "transfiguration" of FBI finally in place–is she suggesting that for the first time the FBI has used Total Information Awareness to support terrorist busts?
Later, during the discussion of Durbin’s attempt to limit the use of 215 to those with some discernible tie to a terrorist suspect, DiFi claims that such changes would end several investigations.
DiFi (101:31): Secondly, the FBI does not support this amendment. And thirdly, in putting forward this higher standard, it would end several classified and critical investigations. This was one of the amendments that I submitted to you and you were gracious enough to accept it. Senator Sessions is correct. These are authorized investigations and it’s a use of the National Security Letter in an authorized investigation. So, as I said, a standard for me is that this not interfere in existing investigations, and in fact it would.
Understand the implications of that comment. Read more →
As I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.
As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.
Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).
(2) shall include— (A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation;
Here’s the language that Pat Leahy had originally proposed.
(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–
‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and
‘(ii)(I) pertain to a foreign power or an agent of a foreign power;
‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;
Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.
But here’s what I understand DiFi has changed the language to Read more →
His statement–as prepared–is below. Note, in particular, that the substitute bill dumped last night takes out oversight on the Section 215 that was originally in Leahy’s bill.
Thank you, Mr. Chairman. When Congress reconsidered the sunsetting provisions of the Patriot Act reauthorization four years ago, I was unable to support the final reauthorization package because I did not believe that it contained adequate oversight and safeguards for some very intrusive surveillance powers.
But I have to acknowledge that Congress did some things right back in 2005 and 2006. First and most importantly, it included new sunsets for three provisions, which is why we are here today. Although it is my preference to pass the right law in the first place, sunsets at least require us to reconsider laws that are controversial or have been passed in haste, as the original Patriot Act was.
Second, during the 2005 reauthorization process, Congress looked at the list of sunsetting provisions and recognized that there were other controversial surveillance laws that had been broadened or codified by the Patriot Act that did not sunset, but that were nonetheless worthy of attention. So Congress did not limit its reconsideration to the sunsetting provisions. It also took up ‘sneak and peek’ criminal search warrants and National Security Letters, neither of which was subject to a sunset. I believe Congress should similarly take a comprehensive approach to the reauthorization process this year, and should take this opportunity to revisit not just the three expiring provisions, but rather a broad range of surveillance laws enacted in recent years to assess what additional safeguards are needed.
Finally, Mr. Chairman, as you well know, early during the reauthorization process in 2005 the members of this committee were able to reach a compromise and report out a bill 18 to zero. It was a difficult negotiation and the bill was far from perfect, but it included enough privacy protections that I was able to support it. That bill went on to pass the Senate by unanimous consent. During the conference process, key elements of that carefully negotiated package were removed. But that 2005 Senate bill nonetheless proved that unanimous bipartisan agreement is possible on these complex issues.
Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.
Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal. Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.
As a reminder, here was my summary of Leahy’s bill:
So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:
- Extend the roving wiretap, Section 215 (tangible things), and “lone wolf” provisions of the PATRIOT Act to 2013
- Mandate further audits of some of these provisions, such as the use of pen registers
- Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
- Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
- Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it
In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:
I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.
[snip]
Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. Read more →
The first thing Russ Feingold said in last week’s hearing on the PATRIOT Act renewal is that there’s something about the way the PATRIOT Act works that has not been made public.
Mr. Kris, let me start by reiterating something you and I have talked about previously. And that’s my concern that a critical information about the implementation of the PATRIOT Act has not been made public, information that I believe would have a significant impact on the debate. I urge you to move expeditiously on the request that I and others on this Committee have made before the legislative process is over.
In his statement, Feingold reiterates that concern, comparing the current debate with the earlier debates on FISA and PATRIOT reauthorization.
I welcome the administration’s openness to potential reforms of the Patriot Act and look forward to working together as the reauthorization process moves forward this fall.
But I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate.
[snip]
This time around, we must find a way to have an open and honest debate about the nature of these government powers, while protecting national security secrets.
As a first step, the Justice Department’s letter made public for the first time that the so-called "lone wolf" authority – one of the three expiring provisions – has never been used. That was a good start, since this is a key fact as we consider whether to extend that power. But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.
You get the feeling that Feingold wants to draw attention to this aspect of the Section 215 of the PATRIOT Act that hasn’t been made public, huh?
Before we look at what that might be, let me attend to the earlier references Feingold makes. Read more →
The House and Senate had hearings on the reauthorization of the PATRIOT Act last week while I was traipsing around the Big City. You can access links to watch the Senate hearing here and the House hearing here. In addition, four Senators (including Feingold, Dodd, Leahy and Merkley) have introduced a bill to repeal telecom immunity, and Senators Feingold and Durbin introduced a JUSTICE bill to further roll back the PATRIOT Act as well as parts of FISA.
I’m going to try to do a blizzard of posts between now and Thursday, when the Senate Judiciary Hearing will be marking up its version of the bill. For now though, let me review what Leahy’s reauthorization bill–S.1692–does. As described by Leahy in his testimony, the PATRIOT reauthorization extends the sunset for some PATRIOT provisions to 2013, but adds in additional oversight as follows.
I introduced a bill with Senators Cardin and Kaufman that aims to strike the kind of balance the administration urges. It will extend the authorization of the three expiring provisions with new sunsets. It adds checks and balances by increasing judicial review of Government powers that capture information on U.S. citizens. It expands congressional oversight and public reporting on the use of intrusive surveillance measures.
[snip]
In response to these concerns, our bill would impose higher standards on the issuance of NSLs and improve judicial oversight of their use. The bill also addresses the constitutional deficiency recently identified by the Second Circuit Court of Appeals, which found that the nondisclosure, or "gag orders," issued under NSLs infringe constitutional rights, as I have long maintained. The bill establishes a procedure giving the recipient of an NSL greater ability to challenge a gag order, eliminates presumptions that allow the Government to ensure itself of victory in defending such orders, and imposes a renewable one-year time limit on these orders.
[snip]
The power of the Government to collect records for tangible things under Section 215 of the original Patriot Act, commonly referred to as the "library records" provision, is another authority that I fought hard to reform during the last reauthorization. The Leahy-Cardin-Kaufman bill adopts the appropriate constitutional standard that I supported in 2006. The standard we propose eliminates the presumption in favor of the Government and, instead, requires the Government to show the connection between the items sought and a suspected terrorist or spy.
This bill would also establish more meaningful judicial review of Section 215 orders and the gag orders covering them. Read more →
Time has an important story matching a claim made in Steven Bradbury’s July 20, 2007 OLC memo about Congressional briefings on torture with what the Senators themselves (particularly John McCain) say about briefing they received. The claim–which appears in the middle of a discussion about what shocks the conscience (pages 43-44)–is this:
Nevertheless, you have informed us that prior to passage of the Military Commissions Act, several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein and that, General Hayden explained, would likely be necessary to the CIA detention and interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate. Many of those Members thereafter were critical in ensuring the passage of the legislation, making clear through their public statements and through their votes that they believed that a CIA program along the lines General Hayden described could and should continue.
The Time article focuses closely on McCain’s objection to this representation:
A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.
Less prominent, but important given her current position as Chair of SSCI investigating–among other things–CIA’s lies about briefings, is this objection from DiFi:
In the weeks that followed, according to a person familiar with matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about use of enhanced interrogation techniques.
Now, some of the people briefed have already raised objections about the characterizations made of these briefings (for example, Feingold wrote a letter objecting to the program and later wrote objecting to Hayden’s representations of his briefings on the program). Read more →
Russ Feingold, predictably, asked Sonia Sotomayor about executive power. I confess, I’m troubled (probably unjustifiably so) by her answer to his first question about executive power.
FEINGOLD: Let me get into a topic that I discussed at length with — with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that’s the issue of executive power.
In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.
As you said in that speech, while it’s hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.
And it was, of course, something that none of us had ever experienced before and something I’ve often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.
So I’m going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?
SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.
The issue of the country’s safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.
In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what’s an unreasonable search and seizure? What are other questions or facts specific?