Senator Russ Feingold - Gonzeles
On the Patriot Act Deal (Cont'd)
Wed Feb 15, 2006 23:09


Senator Russ Feingold - Gonzeles

Statement of U.S. Senator Russ Feingold
On the Patriot Act Deal

Now some in the Administration, and even in this body, took the position that people shouldn’t be able to criticize these provisions until they could come up with a specific example of “abuse.” The Attorney General has repeatedly made that same argument, and he did so again in December in an op-ed in the Washington Post when he dismissed concerns about the Patriot Act by saying that “[t]here have been no verified civil liberties abuses in the four years of the act’s existence.” First of all, that has always struck me as a strange argument since 215 orders are issued by a secret court and people who receive them are prohibited by law from discussing them. In other words, the law is designed so that it’s almost impossible to know if abuses have occurred.

But even more importantly, the claim about lack of abuses just isn’t credible given what we now know about how this Administration views the surveillance laws that this body writes. We now know that for the past four-plus years, the government has been wiretapping the international communications of Americans inside the United States, without obtaining the wiretap orders required by statute. You want to talk about abuses? I can’t imagine a more shocking example of an abuse of power, than to violate the law by eavesdropping on American citizens without first getting a court order based on some evidence that they are possibly criminals, terrorists or spies. So I don’t want to hear again from the Attorney General or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care.

The government should not have the kind of broad, intrusive powers in Section 215 – not this government, not any government. And the American people shouldn’t have to live with a poorly drafted provision that clearly allows for the records of innocent Americans to be searched and just hope that the government uses it with restraint. A government of laws doesn’t require its citizens to rely on the good will and good faith of those who have these powers – especially when adequate safeguards can be written into the laws without compromising their usefulness as a law enforcement tool.

After lengthy and difficult negotiations, the Judiciary Committee came up with language that achieved that goal. It would require the government to convince a judge that a person has some connection to terrorism or espionage before obtaining their sensitive records. And when I say some connection, that’s what I mean. The Senate bill’s standard is the following: (1) that the records pertain to a terrorist or spy; (2) that the records pertain to an individual in contact with or known to a suspected terrorist or spy; or (3) that the records are relevant to the activities of a suspected terrorist or spy. That’s the three prong test in the Senate bill and I think it is more than adequate to give law enforcement the power it needs to conduct investigations, while also protecting the rights of innocent Americans. It would not limit the types of records that the government could obtain, and it does not go as far to protect law-abiding Americans as I might prefer, but it would make sure the government cannot go on fishing expeditions into the records of innocent people.

The Senate bill also would give recipients of a 215 order an explicit, meaningful right to challenge those orders and the accompanying gag orders in court. These provisions passed the Senate Judiciary Committee unanimously after tough negotiations late into the night. As anyone familiar with the Judiciary Committee knows, that’s no easy feat.

The conference report did away with this delicate compromise. First, and most importantly, it does not contain the critical modification to the standard for Section 215 orders. The Senate bill permits the government to obtain business records only if it can satisfy one or more prongs of the three prong test. This is a broad standard with a lot of flexibility. But it retains the core protection that the government cannot go after someone who has no connection whatsoever to a terrorist or spy or their activities.

The conference report replaces the three prong test with a simple relevance standard. It then provides a presumption of relevance if the government meets one of the three prongs. It is silly to argue that this is adequate protection against a fishing expedition. The only actual requirement in the conference report is that the government show that those records are relevant to an authorized intelligence investigation. Relevance is a very broad standard that could arguably justify the collection of all kinds of information about law-abiding Americans. The three prongs now are just examples of how the government can satisfy the relevance standard. That is not simply a loophole or an exception that swallows the rule. The exception is the rule.

I’ll try to make this as straightforward as I can. The Senate bill requires the government to satisfy one of three tests. Each test requires some connection between the records and a suspected terrorist or spy. The conference report says that the government only is required to satisfy a new, fourth test, which is relevance, and which does not require a connection between the records and a suspect. The other three tests no longer provide any protections at all.

This issue was perhaps the most significant reason that I and others objected to the conference report. So how was this issue addressed by the White House deal to get the support of some Senators? It wasn’t. Not one change was made on the standard for obtaining Section 215 orders. That is a grave disappointment. The White House refused to make any changes at all. Not only would it not accept the Senate version of Section 215, which no member of this body objected to back in July, it wouldn’t make any change in the conference report on this issue at all.

Another significant problem with the conference report that was rejected back in December was that it does not authorize judicial review of the gag order that comes with a Section 215 order. While some have argued that the review by the FISA court of a government application for a Section 215 order is equivalent to judicial review of the accompanying gag order, that is simply inaccurate. The statute does not give the FISA court any latitude to make an individualized decision about whether to impose a gag order when it issues a Section 215 order. It is required by statute to include a gag order in every Section 215 order. That means the gag order is automatic and permanent in every case. This is a serious deficiency, one that very likely violates the First Amendment. In litigation challenging a similar permanent, automatic gag rule in a National Security Letter statute, two courts have found First Amendment violations because there is no individualized evaluation of the need for secrecy. I have those decisions here. Perhaps I’ll have a chance to read them during this debate.

Now, this question of judicial review of the Section 215 gag order is one issue that actually is addressed by the White House deal. Addressed, but not solved. Far from it. Under the deal, there is judicial review of Section 215 gag orders, but it can only take place after a year has passed and can only be successful if the recipient of the Section 215 order proves that that government has acted in bad faith. As many of us have argued in the context of National Security Letters, that is a virtually impossible standard to meet. We need meaningful judicial review of these gag orders, not just the illusion of it.

I do want to acknowledge one change made by the White House deal that I think is an improvement over the conference report. The conference report clarifies that recipients of both Section 215 orders and National Security Letters – which I will talk about in detail in a moment – can consult an attorney. But it also includes a provision that appears to require the recipients of these letters to notify the FBI if they consult with an attorney and to identify the attorney to the FBI. Obviously, this could have a significant chilling effect on the right to counsel. The deal struck with the White House makes clear that recipients of Section 215 orders and National Security Letters would not have to tell the FBI if they consult with an attorney. That is an improvement over the conference report, but unfortunately it is only one relatively minor change.

Mr. President, let me turn next to a very closely related provision that has finally been getting the attention it deserves: National Security Letters, or NSLs, an authority that was expanded by Sections 358 and 505 of the Patriot Act. This NSL issue has flown under the radar for years, even though many of us have been trying to bring more public attention to it. I’m gratified that we are finally talking about NSLs, in large part due to a lengthy Washington Post story published last year on the use of these authorities.

What are NSLs, and why are they such a concern? Let me spend a little time on this because it really is important.

National Security Letters are issued by the FBI to businesses to obtain certain types of records. So they are similar to Section 215 orders, but with one very critical difference. The government does not need to get any court approval whatsoever to issue them. It doesn’t have to go to the FISA court and make even the most minimal showing. It simply issues the order signed by the Special Agent in Charge of a Field Office or some other FBI headquarters official.

NSLs can only be used to obtain certain categories of business records, while Section 215 orders can be used to obtain “any tangible thing.” But even the categories reachable by an NSL are quite broad. NSLs can be used to obtain three types of business records: subscriber and transactional information related to Internet and phone usage; credit reports; and financial records, a category that has been expanded to include records from all kinds of everyday businesses like jewelers, car dealers, travel agents and even casinos.

Just as with Section 215, the Patriot Act expanded the NSL authorities to allow the government to use them to obtain records of people who are not suspected of being, or even of being connected to, terrorists or spies. The government need only certify that the documents are either sought for or relevant to an authorized intelligence investigation, a far-reaching standard that could be used to obtain all kinds of records about innocent Americans. And just as with Section 215, the recipient is subject to an automatic, permanent gag rule.

The conference report does little to fix the problems with the National Security Letter authorities. In fact, it could be argued that it makes the law worse. Let me explain why.

First, the conference report does nothing to fix the standard for issuing an NSL. It leaves in place the breathtakingly broad relevance standard. Now, some have analogized NSLs to grand jury subpoenas, which are issued by grand juries in criminal investigations to obtain records that are relevant to the crime they are investigating. So, the argument goes, what is the big deal if NSLs are also issued under a relevance standard for intelligence investigations?

Two critical differences make that analogy break down very quickly. First of all, the key question is: Relevant to what? In criminal cases, grand juries are investigating specific crimes, the scope of which is explicitly defined in the criminal code. Although the grand jury is quite powerful, the scope of its investigation is limited by the particular crime it is investigating. In sharp contrast, intelligence investigations are, by definition, extremely broad. When you are gathering information in an intelligence investigation, anything could potentially be relevant. Suppose the government believes a suspected terrorist visited Los Angeles in the last year or so. It might then want to obtain and keep the records of everyone who has stayed in every hotel in L.A., or booked a trip to L.A. through a travel agent, over the past couple years, and it could argue strongly that that information is relevant to a terrorism investigation because it would be useful to run all those names through the terrorist watch list.

Now, I don’t have any reason to believe that such broad use of NSLs is happening. But the point is that when you are talking about intelligence investigations, “relevance” is a very different concept than in criminal investigations. It is certainly conceivable that NSLs could be used for that kind of broad dragnet in an intelligence investigation. Nothing in current law prevents it. The nature of criminal investigations and intelligence investigations is different, and let’s not forget that.

Second, the recipients of grand jury subpoenas are not subject to the automatic secrecy that NSL recipients are. We should not underestimate the power of allowing public disclosure when the government overreaches. In 2004, federal officials withdrew a grand jury subpoena issued to Drake University for a list of participants in an antiwar protest because of public revelations about the demand. That could not have happened if the request had been under Section 215 or for records available via the NSL authorities.

Unfortunately, there are many other reasons why the conference report does so little good on NSLs. Let’s talk next about judicial review. The conference report creates the illusion of judicial review for NSLs, both for the letters themselves and for the accompanying gag rule, but if you look at the details, it is drafted in a way that makes that review virtually meaningless. With regard to the NSLs themselves, the conference report permits recipients to consult their lawyer and seek judicial review, but it also allows the government to keep all of its submissions secret and not share them with the challenger, regardless of whether there are national security interests at stake. So you can challenge the order, but you have no way of knowing what the government is telling the court in response to your challenge. The parties could be arguing about something as garden variety as attorney-client privilege, with no national security issues, and the government would have the ability to keep its submission secret. That is a serious departure from our usual adversarial process, and it is very disturbing.

The other significant problem with the judicial review provisions is the standard for getting the gag rule overturned. In order to prevail, the recipient has to prove that any certification by the government that disclosure would harm national security or impair diplomatic relations was made in bad faith. This is a standard of review that is virtually impossible to meet. So what we have is the illusion of judicial review. When you look behind the words in the statute, you realize it’s just a mirage.

Does the White House deal address these problems? It does not. In fact, as I have already discussed, it expands that same very troubling standard of review to judicial review of Section 215 gag orders.

The modifications to the conference report agreed to by the White House do contain one other purported change to one of the NSL statutes. This modification states that the FBI cannot issue an NSL for transactional and subscriber information about telephone and Internet usage to a library unless the library is offering “electronic communication services” as defined in the statute. But that just restates the existing requirements of the NSL statute, which currently applies only to entities – libraries or otherwise – that provide “electronic communication services.” So that provision has no real legal effect whatsoever. Perhaps that explains why the American Library Association issued a statement calling this provision a “fig leaf” and expressing disappointment that so many Senators have agreed to this deal.

I also want to take

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