Friday, December 16, 2005

Feingold's Senate Statement On the Reauthorization of the USA PATRIOT Act

Ok, this was a very long floor statement. I'm going to butcher it here to point out what I feel are the more important points. I'll further try to bold the main points of that. Still, this is going to be a long post.

Let me start with Section 215, the so-called “library” provision, which has received so much public attention....

Section 215 of the Patriot Act allows the government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records, but also medical records and various other types of business records. The Patriot Act allowed the government to obtain these records as long as they were "sought for" a terrorism investigation. That’s a very low standard. It didn’t require that the records concern someone who was suspected of being a terrorist or spy, or even suspected of being connected to a terrorist or spy. It didn’t require any demonstration of how the records would be useful in the investigation. Under Section 215, if the government simply said it wanted records for a terrorism investigation the secret FISA court was required to issue the order -- period. To make matters worse, recipients of these orders are also subject to an automatic gag order. They cannot tell anyone that they have been asked for records....

The government should not have the kind of broad, intrusive powers it gave itself in Section 215. 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 quite broad, and 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 conference report did away with this delicate compromise... The conference 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.... 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...

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...

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 supervisory official...

Specifically, 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...

...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.

One of the most fundamental protections in the Bill of Rights is the Fourth Amendment’s guarantee that all citizens have the right to “be secure in their persons, houses, papers, and effects” against “unreasonable searches and seizures.” ... One is the requirement that a search be conducted pursuant to a warrant. The Constitution specifically requires that a warrant for a search be issued only where there is probable cause and that the warrant specifically describe the place to be searched and the persons or things to be seized...

...when defenders of the Patriot Act say that sneak and peek searches were commonly approved by courts prior to the Patriot Act, they are partially correct. Some courts permitted secret searches in very limited circumstances, but they also recognized the need for prompt notice unless a reason to continue to delay notice was demonstrated. And they specifically said that notice had to occur within seven days.

Section 213 of the Patriot Act didn’t get this part of the balance right. It allowed notice to be delayed for any reasonable length of time. Information provided by the Administration about the use of this provision indicates that delays of months at a time are now becoming commonplace.

...The Patriot Act also broadened the justifications that the government could give in order to obtain a sneak and peek warrant. It included what came to be known as the “catch-all” provision, which allows the government to avoid giving notice of a search if it would “seriously jeopardize an investigation.”...

Let me make one final point about sneak and peek warrants. Don’t be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It’s not. Section 213 is a criminal provision that could apply in whatever kind of criminal investigation the government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations.

...I should mention the one significant improvement to the conference report over last month’s draft. This new version includes four-year sunsets on three of the most controversial provisions: roving wiretaps, the so-called “library” provision, and the “lone wolf” provision of the Foreign Intelligence Surveillance Act. Previously, the sunsets on these provisions were at seven years, and it is certainly an improvement to have reduced that number so that Congress can take another look at those provisions sooner.

But, Mr. President, adding sunsets and new reporting and oversight requirements only gets you so far. The conference report remains deeply flawed...Sunsetting bad law in another four years is not good enough. Simply requiring reporting on the government’s use of these overly expansive tools does not ensure that they won’t be abused. We must make substantive changes to the law, not just improve oversight. This is our chance, and we cannot let it pass by....(read the whole thing)

related post...
PATRIOT ACT UPDATE
By Russ Feingold

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