Congress Braces for Patriot Act Battle

On Sept. 22, Congress began hearings on USA Patriot Act provisions that are set to expire on Dec. 31. Some legislators and the president are seeking to retain controversial portions of the act, albeit in modified form.

The Patriot Act was initially passed in 2001 in an environment of heightened fear after the September 11 terrorist attacks. The legislation broadened the authority of the Federal Bureau of Investigation (FBI) to issue national security letters (NSLs), expanded access for law enforcement to personal and business records, and enabled searches of personal and business property without the knowledge of the occupant. Despite courts deeming some portions of the law unconstitutional and Congress amending other sections, several of the original problems identified by civil liberties and government openness advocates remain.

Three key provisions in the act, among the most controversial, are expiring at the end of 2009. However, the Obama administration wants to preserve them. These are the provisions for roving wiretaps to monitor suspects who may try to avoid detection by switching mobile numbers, the ability to obtain business records of national security targets from third parties, and the ability to track lone-wolf suspects who may be planning attacks without belonging to a terrorist group.

Assistant Attorney General Ronald Weich wrote [1] to Congress on Sept. 14 identifying these provisions as "important authorities." Weich indicated that the administration would consider modifications so long as they do not undermine the effectiveness of the powers. Some who questioned these powers have criticized [2] President Obama for his support of the Patriot Act provisions despite his campaign platform, which opposed much of the legislation. However, others who also raise concerns about these powers, such as the American Civil Liberties Union (ACLU), interpret [3] this letter as an announcement that the administration is open to reform.

Congress has already started the debate over reforming the law. Sens. Russell Feingold (D-WI) and Richard Durbin (D-IL) introduced the Justice Act [4] on Sept. 17, which some groups, such as the Electronic Frontier Foundation, were quick to support [5]. The bill would preserve the three controversial provisions but add new checks and balances, which would also cover NSLs. Further, the Justice Act would repeal a provision intended to provide legal immunity to telecom companies that may have illegally assisted the National Security Agency’s warrantless wiretapping program. Even if Weich’s letter is a signal that the administration is open to reform, Obama was a supporter of telecom immunity when he was a senator. Thus, it is uncertain whether he would veto the Justice Act if it is passed with the immunity repeal.

Sen. Patrick Leahy (D-VT) has introduced a separate bill, called USA Patriot Act Sunset Extension Act of 2009 (S. 1692 [6]). This legislation includes some oversight and limitations on the expiring provisions but does not include the privacy safeguards and restrictions on non-disclosure provisions that the Justice Act does. The Leahy bill is set to be marked up on Sept. 30, at which time provisions from the Justice Act could be adopted.

The national security letter provision is not set to expire at the end of 2009; however, both pieces of legislation include new restrictions on NSLs. Included in these reforms are increased standards for issuance, limitations on the types of information that can be obtained by NSLs, limitations on non-disclosure orders for NSLs, and limits on emergency use of NSLs.

In the House, Reps. Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) had introduced the National Security Letters Reform Act of 2009 (H.R. 1800 [7]) on March 30. That legislation would increase judicial oversight of NSLs by limiting the gag order covering the letters to 30 days and requiring that FBI requests for extensions of gag orders be made to a district court within any district that the investigation is taking place. The legislation also requires that the FBI specifically demonstrate how lifting the gag order would endanger evidence, the safety of an individual, or the national security of the United States. Moreover, anyone receiving an NSL would have the right to petition a court to modify or set aside the letter or to suppress the evidence gathered as a result of the letter. That bill has yet to move out of committee.

Other areas that public interest groups have complained about are not addressed by the reauthorization bills. In March, the ACLU issued a report [8] calling for reform of the Material Support Statute that criminalizes various activities, regardless of whether they are intentionally meant to further terrorist goals. Opponents of the material support statue complain that the provisions have reduced humanitarian aid to the Middle East as charities worry about possible prosecution if some individuals helped are in some way connected to terrorism. Also, the ACLU has sought to remove the ideological exclusion section of the law, which denies admission to foreign nationals who support political or social groups that endorse acts of terrorism.