It is difficult to debate an issue of such importance and have very good friends who are taking an opposite position. But I think that, in this case, we have to look very squarely at the literal reading of the Constitution. The First and…
It is difficult to debate an issue of such importance and have very good friends who are taking an opposite position. But I think that, in this case, we have to look very squarely at the literal reading of the Constitution.
The First and Fourth Amendment literal reading makes it very clear that the Patriot Act is a destructive undermining of constitutional principles. There are extraordinary powers being given by the government, and it contravenes not just principles of the Constitution but our own oath to defend the Constitution.
I want to speak to the provisions that are set for reauthorization here.
Two of the provisions are contained in the Patriot Act, legislation that I opposed when it first came up because I believed that it was over-infringement on basic civil liberties, including freedom of speech.
The first one, section 206, known as the John Doe wiretap, allows the FBI to obtain an order from the FISA, Foreign Intelligence Surveillance Court, to wiretap a target without having to specify the target or their device, and I challenged the constitutionality because I believe this provision severely undermines the Fourth Amendment, which requires warrants to describe the place to be searched and the person or things to be seized. This provision of the Patriot Act requires neither the target nor device to be identified.
The second provision, section 215 of the Patriot Act, known as the business records provision, allows the FBI to order any person or business to turn over any tangible things, as long as it specifies it is for an authorized investigation. Orders executed under section 215 constitute a serious challenge to the Fourth and First Amendment rights by allowing the government to demand access to records often associated with the exercise of First Amendment rights, such as library records or medical records.
The third provision, section 6001, known as the lone wolf surveillance provision, is contained in the Intelligence Reform and Terrorism Prevention Act of 2004 that authorized the government to conduct investigations of non-U.S. individuals not connected with foreign power or terrorist groups, but effectively allows the government to circumvent the standards that are required to obtain electronic surveillance orders from criminal courts.
I would hope that my good friend from California, in his very passionate defense of the Patriot Act, did not mean to imply that the distinguished Mr. Conyers in some way would suborn terrorism, because he chooses to point out that the standards that are required to obtain electronic surveillance orders from criminal courts are really being circumvented under section 601.
I yield to the gentleman from California.
I think it is fair for us to debate this. I think we have to just be cautious about how far we draw conclusions about the motivations of each other in taking the positions that we do.
I want to first thank the ranking member, and I want to thank the gentleman from Texas for the amicable manner of comity that you have extended here. It is very much appreciated. I also want to say, as I have listen to my colleagues on the other side of the aisle speak in defense of this, I am aware that you love this country, that you want America to be safe, and you want America to continue to be free. And the great thing about this Congress is that we have different ways of viewing how we can go about that. But I have great respect for each of the speakers who has come forward.
I want to say that since Congress first passed the Patriot Act in 2001 that we have been continually challenged on this question of our constitutional duties to act as a coequal branch of government and that it is my belief that we have failed to conduct checks and balances over government power. I want to associate myself with the remarks of the gentleman from California (Mr. Rohrabacher) in that regard and that we have failed to conduct robust and effective oversight. And in connection with the gentleman from Wisconsin, some of the remarks that you have made about what we needed to do, I think you have made some good points on that. I also think that we have a responsibility here to protect the American people from overt infringements on their most basic civil liberties, and I see this continuing extension as being a challenge to that.
Mr. Speaker, I rise in strong opposition to H.R. 514.
Since Congress first passed the PATRIOT Act in 2001, we have continually abdicated our constitutional duties to act as a co-equal branch of government by failing to conduct checks and balances over government power, failing to conduct robust and effective oversight, and ultimately, failing to protect the American people from overt infringements on their most basic civil liberties by continuing to extend these provisions without any meaningful reforms.
These three provisions were passed in the wake of 9/11, and given sunsets in recognition of their far reaching and unprecedented powers that effectively allow the government to conduct domestic surveillance and demand material from people not connected to any terrorism investigation, including librarians and peace groups. Yet they have been extended Congress after Congress without any reform.
Perhaps even more troubling is that we are extending these provisions through the end of the year without addressing the PATRIOT Act as a whole.
In a 2007 article by the Washington Post, then Federal Bureau of Investigation (FBI) assistant director stated that he is ``not even sure such an example exists'' that would demonstrate how expanded surveillance has made a difference in our national security.
Section 215 of the PATRIOT Act expanded the type of information the government could request from targets, while at the same time, lowering the standard required to obtain an order to request private records from targets. This means that the government can obtain orders for private records or items from people who are not connected to any investigation, including U.S. citizens and lawful residents. Orders executed under this provision constitute a serious violation of First and Fourth Amendment rights by allowing the government to demand access to records often associated with the exercise of First Amendment rights, such as library or medical records.
National Security Letters (NSLs), which can be issued under Section 215 of the PATRIOT Act, allow the government to obtain private information from telecommunication companies, internet and email, and health care providers without judicial warrants or oversight. They can be issued to people who have not been accused of any wrongdoing and are often accompanied by gag orders.
According to an article in the Washington Post from 2005, NSLs ``do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress.'' The Fourth Amendment of the Constitution requires prior judicial review and allows warrants to be issued only with probable cause.
The government has used NSLs to demand records of patrons from librarians across the country. A decision by a federal district court rules in 2006 that the gag order enforced on librarians in Connecticut violated the First Amendment, forcing the government to withdraw the gag order and its demand for patron records.
Despite a successful challenge to the unconstitutionality of the original PATRIOT Act's gag order provisions by the American Civil Liberties Union (ACLU), 5% of all NSLs issued by the FBI in 2006 contained ``insufficient explanation to justify imposition of these obligations,'' according to the Inspector General of the Department of Justice.
The ability to demand records from Americans absent judicial review and probable cause are certain to quell free speech and freedom of association--rights protected and guaranteed by the Constitution.
The ``material support'' statute, also contained in the PATRIOT Act, criminalized the act of providing ``material support'' to any foreign organization designated as terrorist by the Secretary of State. ``Material support'' is defined so broadly that it can refer to almost any kind of support, including support that does not further terrorism. The U.S. Court of Appeals for the Ninth District Court ruled in 2000 that criminal bans on ``providing `personnel' and `training' to groups designated as foreign terrorist organizations by the government are unconstitutionally vague and could criminalize free speech as protected by the First Amendment,'' to include human rights advocacy training, humanitarian aid in conflict zones, or even writing an op-ed. A number of the cases brought forth by the government using this statute have been dismissed or ended in mistrial.
According to the ACLU, the material support provisions ``impermissibly criminalize a broad range of First Amendment-protected activity, both as a result of their sweeping, vague terms and because they do not require the government to show that a defendant intends to support the criminal activity of a foreign terrorist organization.''
Despite years of documentation by the Inspector General of the Department of Justice and respected human rights organizations of abuse by the government of these provisions, we have failed to hold agencies accountable for abusing the far reaching powers allowed under the PATRIOT Act.
As Members of Congress, we are sworn to protect the rights and civil liberties afforded to us by the Constitution. We have a responsibility to exercise our oversight powers fully, and significantly reform the PATRIOT Act to ensure that the privacy and civil liberties of all Americans are fully protected.
[From the Washington Post, Mar. 10, 2007]
FBI Audit Prompts Calls for Reform--Some Lawmakers Suggest Limits On
Patriot Act
(By Dan Eggen and John Solomon)
Lawmakers from both parties yesterday called for limits on
antiterrorism laws in response to a Justice Department report
that the FBI improperly obtained telephone logs,
banking records and other personal information on thousands
of Americans.
The audit by the department's inspector general detailed
widespread abuse of the FBI's authority to seize personal
details about tens of thousands of people without court
oversight through the use of national security letters.
It also found that the FBI had hatched an agreement with
telephone companies allowing the agency to ask for
information on more than 3,000 phone numbers--often without a
subpoena, without an emergency or even without an
investigative case. In 2006, the FBI then issued blanket
letters authorizing many of the requests retroactively,
according to agency officials and congressional aides briefed
on the effort.
The disclosures prompted a public apology from FBI Director
Robert S. Mueller III and promises of reform from Attorney
General Alberto R. Gonzales, who was the focus of a new tide
of criticism from Democrats and Republicans already angry
about his handling of the firing of eight U.S. attorneys.
``I am the person responsible,'' Mueller said in a hastily
scheduled news conference. ``I am the person accountable, and
I am committed to ensuring that we correct these deficiencies
and live up to these responsibilities.''
Democrats and Republicans alike said Gonzales, Mueller and
the Bush administration did not properly monitor the FBI and
guard the privacy rights of U.S. citizens and legal
residents. The report came at the end of a difficult
political week for the Bush administration, after the
conviction of Vice President Cheney's former chief of staff
in the CIA leak case and damaging allegations by fired
federal prosecutors.
Top lawmakers raised the possibility that Congress would
seek to curb the Justice Department's powers, most likely by
placing restrictions on the USA Patriot Act antiterrorism
law.
``This goes above and beyond almost everything they've done
already,'' said Sen. Charles E. Schumer (N.Y.), who was among
a host of Democrats promising investigative hearings. ``It
shows just how this administration has no respect for checks
and balances.''
Sen. Arlen Specter (Pa.), the Judiciary Committee's ranking
Republican, told reporters that Congress may ``impose
statutory requirements and perhaps take away some of the
authority which we've already given to the FBI, since they
appear not to be able to know how to use it.''
Senate Majority Whip Richard J. Durbin (D-Ill.), who has
been pressing for a review of national security letters since
2005, said the report ``confirms the American people's worst
fears about the Patriot Act.''
A national security letter is a type of administrative
subpoena that allows the FBI to demand records from banks,
credit-reporting agencies and other companies without the
supervision of a judge. The Patriot Act significantly
expanded the FBI's ability to use them, and a reauthorization
of the law last year required the audit that was issued
yesterday.
The findings by Inspector General Glenn A. Fine were so at
odds with previous assertions by the Bush administration that
Capitol Hill was peppered yesterday with retraction letters
from the Justice Department attempting to correct statements
in earlier testimony and briefings. Gonzales and other
officials had repeatedly portrayed national security letters
as a well-regulated tool necessary for the prevention of
terrorist attacks.
One such retraction letter, sent to Specter by Acting
Assistant Attorney General Richard A. Hertling, sought to
correct a 2005 letter that attacked a Washington Post story
about national security letters. ``We have determined that
certain statements in our November 23 letter need
clarification,'' Hertling wrote.
Fine's 199-page unclassified report found that the FBI's
records showed it issued more than 143,000 requests for
information on more than 52,000 people through national
security letters from 2003 to 2005. But not only did the
agency understate that number in required reports to
Congress, the number of requests it issued was much higher.
Nearly half the people targeted were U.S. citizens or legal
residents, and the proportion of such ``U.S. persons''
increased over the three-year period, the report said.
In examining a small sample of security letters issued by
four FBI offices, Fine discovered that the letters were
improperly issued about 16 percent of the time. In the sample
of 293 letters, the FBI had identified 26 potential
violations but missed 22 others, the report said.
The report also details how, after obtaining sweeping new
anti-terrorism powers under the Patriot Act in late 2001, the
FBI did not establish basic training and record-keeping
procedures to ensure that civil liberties were protected.
That kept the agency from giving Congress accurate numbers on
how often it used national security letters, the
investigation found.
``During the time period covered by this review, the FBI
had no policy or directive requiring the retention of signed
copies of the national security letters or any requirement to
upload national security letters to the FBI's case management
system,'' the report said.
The findings are reminiscent of those in previous reports,
including many by Fine's office, that have detailed the FBI's
chronic inability to keep track of items ranging from guns to
laptops to documents related to the Oklahoma City bombing
case. Fine determined that the latest violations were not
deliberate but that they could be widespread.
Gonzales described the problems as unacceptable and left
open the possibility of criminal charges. He ordered further
investigation.
``Once we get that information, we'll be in a better
position to assess what kinds of steps should be taken,''
Gonzales said after a speech to privacy officials. ``There is
no excuse for the mistakes that have been made, and we are
going to make things right as quickly as possible.''
At the same time, Gonzales stressed that he thinks ``the
kinds of errors we saw here were due to questionable judgment
or lack of attention, not intentional wrongdoing.'' Mueller
said that ``the number of abuses is exceptionally small''
compared with the broad use of national security letters and
that ``no one has been damaged'' by the errors.
Anthony D. Romero, executive director of the American Civil
Liberties Union, which has sued the government over its use
of national security letters, said the report shows the need
for an independent investigation of the Justice Department's
antiterrorism tactics.
``It confirms our greatest suspicions about the abuse of
Patriot Act powers and, specifically, national security
letter powers,'' Romero said.
Aside from the findings about national security letters,
the report details for the first time a separate kind of
emergency letter used in ``exigent circumstances,'' modeled
on letters used by New York FBI agents after the Sept. 11,
2001, attacks. The 739 emergency letters were issued as part
of an agreement with three unidentified telephone companies
and requested information with the promise of subpoenas,
which rarely materialized, the report said.
Mueller indicated that ``we stopped the use of these
letters'' in May 2006. An FBI official later clarified those
comments, saying emergency letters are still used but now
promise a national security letter rather than a subpoena
sometime in the future.
[From the Washington Post, Mar. 18, 2007]
Amid Concerns, FBI Lapses Went On--Records Collection Brought Internal
Questions but Little Scrutiny
(By R. Jeffrey Smith and John Solomon)
FBI counterterrorism officials continued to use flawed
procedures to obtain thousands of U.S. telephone records
during a two-year period when bureau lawyers and managers
were expressing escalating concerns about the practice,
according to senior FBI and Justice Department officials and
documents.
FBI lawyers raised the concerns beginning in late October
2004 but did not closely scrutinize the practice until last
year, FBI officials acknowledged. They also did not
understand the scope of the problem until the Justice
Department launched an investigation, FBI officials said.
Under pressure to provide a stronger legal footing,
counterterrorism agents last year wrote new letters to phone
companies demanding the information the bureau already
possessed. At least one senior FBI headquarters official--
whom the bureau declined to name--signed these ``national
security letters'' without including the required proof that
the letters were linked to FBI counterterrorism or espionage
investigations, an FBI official said.
The flawed procedures involved the use of emergency demands
for records, called ``exigent circumstance'' letters, which
contained false or undocumented claims. They also included
national security letters that were issued without FBI rules
being followed. Both types of request were served on three
phone companies.
Referring to the exigent circumstance letters, Sen. Charles
E. Grassley (R-Iowa) wrote in a letter Friday to Justice
Department Inspector General Glenn A. Fine: ``It is . . .
difficult to imagine why there should not have been swift and
severe consequences for anyone who knowingly signed . . . a
letter containing false statements. Anyone at the FBI who
knew about that kind of wrongdoing had an obligation to put a
stop to it and report it immediately.''
A March 9 report by Fine bluntly stated that the FBI's use
of the exigency letters ``circumvented'' the law that governs
the FBI's access to personal information about U.S.
residents.
The exigency letters, created by the FBI's New York office
after the Sept. 11, 2001, attacks, told telephone providers
that the FBI needed information immediately and would follow
up with subpoenas later. There is no basis in the law to
compel phone companies to turn over information using such
letters, Fine found, and in many cases, agents never followed
up with the promised subpoenas, he said.
But Fine's report made no mention of the FBI's subsequent
efforts to legitimize those actions with improperly prepared
national security letters last year.
Fine's report brought a deluge of criticism on the FBI,
prompting a news conference at which Director Robert S.
Mueller III took responsibility for the lapses. Some
lawmakers immediately proposed curtailing the government's
expansive anti-terrorism powers under the USA Patriot Act.
In a letter to Fine that was released along with the March
9 report, Mueller acknowledged that the bureau's agents had
used unacceptable shortcuts, violated internal policies and
made mistakes in their use of exigent circumstance letters.
Mueller also said he had banned the future use of such
letters this month, although he defended their value and
denied that the agency had intentionally violated the law.
Other FBI officials acknowledged widespread problems but
said they involved procedural and documentation failures, not
intentional misgathering of Americans' phone records. Mueller
ordered a nationwide audit, which began Friday, to determine
if the inappropriate use of exigency letters went beyond one
headquarters unit.
``We wish, in retrospect, that we had learned about this
sooner, corrections had been made and the process was more
transparent,'' FBI Assistant Director John Miller said
yesterday.
Fine's report said the bureau's counterterrorism office
used the exigency letters at least 739 times between 2003 and
2005 to obtain records related to 3,000 separate phone
numbers. FBI officials acknowledged that the process was so
flawed that they may have to destroy some phone records to
keep them from being used in the future, if the bureau does
not find proof they were gathered in connection with an
authorized investigation.
Disciplinary action may be taken when the bureau completes
an internal audit, a senior FBI official said in an interview
at headquarters Friday.
Ann Beeson, an attorney for the ACLU who has sued the FBI
in an effort to block some of its data requests, said that if
the bureau cannot prove a link between the letters and an
ongoing investigation, its requests were ``a total fishing
expedition.''
The FBI agreed that one senior official, who spoke on the
condition of anonymity because of forthcoming House and
Senate hearings on the matter, would speak for the agency.
Lawmakers have begun to probe who knew about the use of the
letters and why the department did not act more swiftly to
halt the practice. Grassley asked that Fine turn over to the
Senate Judiciary Committee copies of all FBI e-mails related
to the letters of demand, as well as transcripts of the
interviews Fine conducted on the issue.
The committee has scheduled a hearing for Wednesday, with
Mueller as the chief witness. On Tuesday, the House Judiciary
Committee intends to question Fine and FBI general counsel
Valerie Caproni.
FBI and Justice Department officials said most of the
letters at issue were drafted by the Communications Analysis
Unit (CAU), which comprises about a dozen people assigned to
analyze telephone records and other communications for
counterterrorism investigators. They sent the secret requests
to three companies--AT&T, Verizon and a third firm whose
identity could not be learned. Since the 2001 terrorist
attacks, the FBI has been paying the companies' cost of
supplying such records almost instantaneously in a form that
its agents can readily examine, according to the report and
the senior FBI official.
In each letter, the FBI asserted that ``due to exigent
circumstances, it is requested that records for the attached
list of telephone numbers be provided.'' The bureau promised
in most of the letters that subpoenas for the same
information ``have been submitted to the U.S. Attorney's
office who will process and serve them formally.''
But the inspector general's probe concluded that many of
the letters were ``not sent in exigent circumstances'' and
that ``there sometimes were no open or pending national
security investigations tied to the request,'' contrary to
what U.S. law requires. No subpoenas had actually been
requested before the letters were sent. The phone companies
nonetheless promptly turned over the information, in
anticipation of getting a more legally viable document later,
FBI officials said.
The use of such letters was virtually ``uncontrolled,''
said an FBI official who was briefed on the issue in early
2005. By that fall, CAU agents had begun creating
spreadsheets to track phone records they had collected for a
year or more that were not covered by the appropriate
documents, according to FBI e-mails and interviews with
officials.
A spokesman for AT&T declined to discuss the topic,
referring questions to the FBI. Verizon spokesman Peter
Thonis, who would not confirm nor deny the existence of an
FBI contract with his firm, said that ``every day Verizon
subpoena units respond to emergency requests from federal,
state and local law enforcement for particular calling
records. After 9/11, of course, Verizon responded to FBI
emergency requests in terrorist matters, and we had every
reason to believe they were legitimate emergency
situations.''
The inspector general's report said that the wording of the
exigency letters was copied from a standard letter that the
FBI's New York office used to obtain urgently needed records
after the 2001 terrorist bombings. When officials from that
office were later reassigned to create the CAU in Washington,
the senior FBI official said, ``they brought their business
practices with them'' and continued to use the same letter
``for reasons that I cannot explain.''
But the unit was not authorized under FBI rules to make
such requests, and from the outset in 2003 it asked FBI field
offices to submit the promised legal follow-up documents. The
offices rarely did so speedily, and in many cases ignored the
request altogether.
``In practice, if you have already got the records, the
incentive to do the paperwork is reduced,'' the senior FBI
official said.
When a lawyer in the FBI's national security law branch,
Patrice Kopistansky, noted in late 2004 that the proper legal
justifications were frequently missing or extremely late, she
did not advise agents to ``change their process,'' the senior
official said. ``Our advice was instead to . . . use these
letters only in true emergencies'' and institute ``covering
practices.''
These included ensuring that the bureau's agents had opened
a related investigation and promptly sent a formal national
security letter to provide legal backing for the demand.
Bassem Youssef, who currently heads the CAU, raised
concerns about the tardy legal justifications shortly after
he was assigned to the job in early 2005, according to his
lawyer, Steve Kohn.
``He discovered they were not in compliance, and then he
reported that to his chain of command. They defended the
procedures and took no action,'' Kohn said, adding that
``their initial response was to deny the scope of the
problem.''
Youssef has battled the FBI in court over whether he was
denied a promotion because of discrimination based on his
ethnicity.
Eventually, the general counsel's office organized a
meeting at headquarters on Sept. 26, 2005, where the bureau
considered a work-around: Its lawyers proposed creating
special, catch-all investigative files that could be used to
authorize quick phone-records seizures that did not involve
open field investigations.
But one official at the meeting, Youssef, argued that
genuine emergency requests for the records ``were few and far
between,'' according to an e-mail summarizing the meeting
that was reviewed by The Washington Post, and the idea was
never implemented. The account referred to efforts by one of
the bureau's top lawyers to brief ``higher ups'' in the
agency about the problem.
``At some point, they told us there were not that many such
letters'' still in use, the senior official said. ``We
believed the problem had resolved itself . . . in retrospect,
it never got resolved.''
One reason that FBI officials did not act more quickly is
that Kopistansky and others in the general counsel's office
did not review until May 2006 copies of any of the exigent
circumstances letters sent to the phone companies from 2003
to 2005. As a result, they were unaware that some of the
letters contained false statements about forthcoming
subpoenas and urgent deadlines, the senior official said.
Bureau officials ultimately decided to ``clean up'' the
problem by writing seven national security letters designed
to provide legal backing for all the telephone records
requests that still needed it, the senior FBI official said.
In every case, these requests in 2006 covered records already
in the FBI's possession and lacked the required cover memos
spelling out the investigative requirements for the requests.
At no time did senior FBI officials outside the
communications unit attempt to tally how often the exigent
circumstances letters had been used, with the result that
Mueller and others in senior management did not learn about
the scope of the problem until two months ago, when Fine
informed them, the senior official said.