The 109th Congress which convenes on Jan. 3 will join one of the most contentious legislative battles to result from the war on terrorism: whether to preserve, amend or scrap portions of the USA Patriot Act, enacted in October of 2001.
Although the law passed by a vote of 357 to 66 in the House and with only one “no” vote in the Senate, it has become a magnet for fears about government intrusion into Americans’ homes, businesses, and cell phone conversations.
On Thursday a panel made up of two supporters of the law and two of its critics squared off at the meeting of the conservative Federalist Society in Washington to debate whether its provisions set to expire next year should be renewed.
Federal District Judge Audrey Collins ruled last January that one section of the law is unconstitutional. That section deals with those who provide expert advice and assistance to terrorists. The Justice Department is appealing her ruling to the Ninth Circuit Court of Appeals.
Flashpoints in the battle
But that provision wasn’t the main focus of Thursday’s debate nor will it likely be the center of attention in the battle ahead.
The flashpoints are:
- Section 213, which allows judges to delay the government’s notifying a person that federal agents have searched his home or other property. The law allows delayed notice, or “sneak and peek” to use the critics’ label, when necessary to prevent destruction of evidence, killing of witnesses, or escape of suspects.
- Section 215 empowers a special federal court, under the 1978 Foreign Intelligence Surveillance Act, to issue secret orders requiring businesses or institutions to turn over records concerning suspected terrorists or foreign agents.
This is the section of the law that critics have said allows the government to get library records. While that is true, library records are only one type of document covered by Section 215. (The word “library” never appears in the Patriot Act.) And this part of the law applies only to terrorism or espionage investigations, not to ordinary criminal investigations.
- Section 218 expands the number of cases in which the CIA or FBI intelligence data can be shared with federal prosecutors whenever investigating foreign intelligence activities.
Sections 215 and 218 expire or “sunset” at the end of 2005.
Viet Dinh, who served as assistant attorney general in the Bush administration until last summer and had a central role in writing the Patriot Act, said the law had made “only incremental changes” in statutes that had long been on the books. But he argued, “those incremental changes have had an exponential effect in our ability to detect and deter terrorism.”
The Patriot Act, he said, “does not enlarge the overall net of surveillance of criminal or terrorist conversations, rather it patches the holes in that net arising from new technology and inefficiencies within government. It doesn’t matter how big your net is if the fish can get away through the holes.”
Patching the holes
One example of “patching the holes in the net” would be the section of the law that allows the Justice Department to ask a judge for a “pen-register” order — allowing the government to detect which numbers are dialed from a telephone — that is valid across the country and not simply in one state or jurisdiction.
Dinh, who now is a professor at Georgetown University Law Center, said, “Congress was very careful to extend the exact same level of judicial supervision and authorization that pre-existed these incremental changes. So, for example, if in the analogue world you would seek to get a trap-and-trace device on a telephone in order to get the outgoing numbers or the incoming numbers, Congress extends the same thing to the addressing and routing information for e-mail.
But, Dinh said, Congress “carved out” and excluded the content of such e-mails, including the subject line of the e-mail. The interception of content “is subject to a higher standard of judicial authorization and supervision, a probable cause standard.”
But Dinh contended that “a lot of the controversy, it seems to me, focuses on the wrong questions, focuses on what is politically sexy and understandable … at the expense of the truly important constitutional questions that are raised by certain provisions of the USA Patriot Act.”
Dinh argued that Section 215, allowing the Foreign Intelligence Surveillance Act court to issue a secret order requiring a business to turn over records concerning alleged terrorists, and Section 213, the delayed notice provision, are “politically sexy while not legally or jurisprudentially significant, or even significant as a matter of civil liberties.”
Dinh said that delayed notice was not alarming since judges have the power to supervise the conduct of those search warrants including delayed notice.
By contrast, he argued, Section 218 of the law, which allows intelligence sharing with federal prosecutors, “does pose significant constitutional issues that nobody has paid attention to.” Dinh said when the Foreign Intelligence Surveillance Act is used to get evidence, it is not clear what standard should be used in excluding illegally obtained evidence.
A federal judge, about to preside over the trial of Sami al-Arian, an alleged financier and supporter of Palestinian Islamic Jihad in Tampa, Fla., will wrestle with this question.
How to not write a law
Rebutting Dinh, Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute in Washington, argued that the Patriot Act was poorly conceived and poses a threat to Americans’ civil rights.
“The Patriot Act is a text-book example of how we should not want laws to be enacted,” he said, referring to the hurried congressional debate and vote on the measure in the aftermath of the Sept. 11 attacks.
Lynch assailed section 215 of the law which, he contended, does not allow a judge to adequately question Justice Department lawyers when they seek a court order to seize records or other evidence. “The judge cannot look behind this application like he would be doing in an ordinary search warrant application,” Lynch said.
Unlike a subpoena issued by a grand jury, orders issued under section 215 are kept secret by “gag orders” which do not allow any person served with such an order to discuss it with anyone.
“This not only raises basic questions of free speech, it also makes it very difficult for Congress to assess, when the sunset provisions come up, whether or not these provisions should be made part of our law,” he said. “It’s a federal offense for somebody who has been served with a 215 order to tell congressmen about it. If I’m a business owner and I’ve received dozens of these things and it cost me a million dollars to comply, I can’t tell anybody the impact it’s having on my business.”
Lynch also blasted the delayed notification provision. “These sneak and peek warrants are not limited to terrorism investigations; they can be used for any violation or investigation of federal criminal law,” he contended.
He pointed out that the delayed notification provision in the law will not “sunset” next year. It is a permanent part of federal law, unless Congress passes a measure to repeal it and the president signs that measure.
Christopher Wray, the assistant attorney general in charge of the criminal division, pointed out that under the law, prosecutors still must go before a federal judge, show probable cause, and prove some justification for a delayed-notice search warrant.
Sidestepping the Fourth Amendment?
Udi Ofer, director of the Bill of Rights Defense Campaign for the New York Civil Liberties Union, joined Lynch’s attack on the law, focusing his fire on Section 218. This part of the law, he argued, “created a class of criminal investigations that now can sidestep Fourth Amendment requirements for probable cause and particularity.”
The Fourth Amendment to the Constitution says that “no (search) Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Under section 218, Ofer said, “the FBI can engage in secret searches… without having to prove probable cause of a crime.”
The relatively obscure Foreign Intelligence Surveillance Act (FISA) court, comprising 11 federal judges, has now become immensely more important, Ofer said.
The Patriot Act, he said, “expanded the jurisdiction of this court dramatically. It’s now dealing with cases it was never supposed to (handle). All of the cases in the FISA court are secret; there is absolutely no public oversight…” to which Dinh responded, “the FISA court does not adjudicate criminal cases, it simply authorizes warrants.”
Wray said it would be a grave error to rebuild the wall between the intelligence agencies and federal prosecutors.
“I’ve lost track of the number of line agents and line prosecutors who tell me if the wall were to go back up, they would quit in utter despair for the country,” he said. “Thankfully, Congress recognized the danger of the wall and brought it down. I believe very, very strongly that it has been a significant event in saving lives and helping us in the war on terror.”
Wray, Lynch, Ofer and Dinh will be part of the discordant chorus that will serenade Congress as it decides next year what to do about the Patriot Act. That debate could well be as dramatic and important as the one over filling the next Supreme Court vacancy.