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Sunday, May 29, 2011

There’s a Secret Patriot Act, Senator Says : Information Clearing House: ICH

By Spencer Ackerman

May 25, 2011 "Wired" -- You may think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden (D-Oregon) says it’s worse than you’ve heard.
Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. But Wyden says that what Congress will renew is a mere fig leaf for a far broader legal interpretation of the Patriot Act that the government keeps to itself — entirely in secret. Worse, there are hints that the government uses this secret interpretation to gather what one Patriot-watcher calls a “dragnet” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden tells Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called “business-records provision,” which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.

“It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

That’s why Wyden and his colleague Sen. Mark Udall offered an amendment on Tuesday to the Patriot Act reauthorization.

The amendment, first reported by Marcy Wheeler, blasts the administration for “secretly reinterpret[ing] public laws and statutes.” It would compel the Attorney General to “publicly disclose the United States Government’s official interpretation of the USA Patriot Act.” And, intriguingly, it refers to “intelligence-collection authorities” embedded in the Patriot Act that the administration briefed the Senate about in February.

Wyden says he “can’t answer” any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information — something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.

“I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected,” he says.

Surveillance under the business-records provisions has recently spiked. The Justice Department’s official disclosure on its use of the Patriot Act, delivered to Congress in April, reported that the government asked the Foreign Intelligence Surveillance Court for approval to collect business records 96 times in 2010 — up from just 21 requests the year before. The court didn’t reject a single request. But it “modified” those requests 43 times, indicating to some Patriot-watchers that a broadening of the provision is underway.

“The FISA Court is a pretty permissive body, so that suggests something novel or particularly aggressive, not just in volume, but in the nature of the request,” says Michelle Richardson, the ACLU’s resident Patriot Act lobbyist. “No one has tipped their hand on this in the slightest. But we’ve come to the conclusion that this is some kind of bulk collection. It wouldn’t be surprising to me if it’s some kind of internet or communication-records dragnet.” (Full disclosure: My fiancée works for the ACLU.)

The FBI deferred comment on any secret interpretation of the Patriot Act to the Justice Department. The Justice Department said it wouldn’t have any comment beyond a bit of March congressional testimony from its top national security official, Todd Hinnen, who presented the type of material collected as far more individualized and specific: “driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, and the like.”

But that’s not what Udall sees. He warned in a Tuesday statement about the government’s “unfettered” access to bulk citizen data, like “a cellphone company’s phone records.” In a Senate floor speech on Tuesday, Udall urged Congress to restrict the Patriot Act’s business-records seizures to “terrorism investigations” — something the ostensible counterterrorism measure has never required in its nearly 10-year existence.

Indeed, Hinnen allowed himself an out in his March testimony, saying that the business-record provision “also” enabled “important and highly sensitive intelligence-collection operations” to take place. Wheeler speculates those operations include “using geolocation data from cellphones to collect information on the whereabouts of Americans” — something our sister blog Threat Level has reported on extensively.

It’s worth noting that Wyden is pushing a bill providing greater privacy protections for geolocation info.

For now, Wyden’s considering his options ahead of the Patriot Act vote on Thursday. He wants to compel as much disclosure as he can on the secret interpretation, arguing that a shadow broadening of the Patriot Act sets a dangerous precedent.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”


[Congressional Record: May 24, 2011 (Senate)]
[Page S3247-S3262]                        

        PATRIOT SUNSETS EXTENSION ACT OF 2011--Motion to Proceed

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to S. 1038, 
which the clerk will report by title.
  The legislative clerk read as follows:

       Motion to proceed to the bill (S. 1038) to extend expiring 
     provisions of the USA PATRIOT Improvement and Reauthorization 
     Act of 2005 and the Intelligence Reform and Terrorism 
     Prevention Act of 2004 until June 1, 2015, and for other 


  Mr. REID. Madam President, following any leader remarks, the Senate 
will resume consideration of the motion to proceed to S. 1038, the 
PATRIOT Act extension, postcloture. There will be a joint meeting of 
Congress at 11 a.m. with Israeli Prime Minister Netanyahu. Senators 
should gather in the Senate Chamber at 10:30 to proceed over to the 
House at about 10:40. We will proceed there as a body.

  Measures Placed on the Calendar--S. 1050, S.J. Res. 13, S.J. Res. 14

  Mr. REID. Madam President, I understand there are three measures at 
the desk due for a second reading.
  The ACTING PRESIDENT pro tempore. The clerk will read the titles of 
the bills for a second time.
  The legislative clerk read as follows:

       A bill (S. 1050) to modify the Foreign Intelligence 
     Surveillance Act of 1978 and to require judicial review of 
     National Security Letters and Suspicious Activity Reports to 
     prevent unreasonable searches, and for other purposes.
       A joint resolution (S.J. Res. 13) declaring that a state of 
     war exists between the Government of Libya and the Government 
     and the people of the United States, and making provision to 
     prosecute the same.
       A joint resolution (S.J. Res. 14) declaring that the 
     President has exceeded his authority under the War Powers 
     Resolution as it pertains to the ongoing military engagement 
     in Libya.

  Mr. REID. I would object to any further proceedings with respect to 
these bills en bloc.
  The ACTING PRESIDENT pro tempore. Objection is heard. The bills will 
be placed on the calendar.

  Mr. LEAHY. Mr. President, nearly 10 years after the attacks of 
September 11, 2001, every one of us in the Senate knows America 
continues to face threats of terrorism. Our allies know this, as well. 
The President's dogged pursuit and success earlier this month against 
Osama bin Laden does not mean we can become complacent or less 
vigilant. We must remain vigilant and ensure the men and women of our 
law enforcement and intelligence agencies have all the appropriate 
tools necessary to protect our Nation and the American people. But as 
every Vermonter knows, tools are only useful if they are regularly 
checked and maintained. Otherwise they become blunt instruments that 
can do harm, rather than accomplish the job.
  Congress recognized this basic notion in 2001, when we first wrote 
the USA PATRIOT Act. I worked with the then-Republican House majority 
leader, Dick Armey to include sunsets on certain surveillance 
authorities in the bill. Even though we had vastly different political 
philosophies, we both agreed we had to have sunset provisions. In 2006, 
when Congress reauthorized the USA PATRIOT Act, I worked to ensure that 
certain sunsets were renewed, and added audits on the use of powers 
with the potential to unnecessarily intrude on the privacy of 
Americans. We should not give a blank check to anybody--whether it is a 
Republican or Democratic administration. We are, after all, Americans 
who believe in our individual liberties.
  Having granted the Government broad authority to gather vast amounts 
of information about the daily lives of Americans, I wanted to do what 
we could to ensure that unfettered information gathering did not occur 
at the expense of Americans' basic constitutional rights and civil 
liberties. The sunsets and audits provide Congress an opportunity to 
examine whether the PATRIOT Act tools are being used appropriately, and 
if not, to sharpen, refine, or restrain those tools accordingly.
  The audits we added in 2005 or 2006 proved to be very helpful because 
they identified that there were abuses in the way the PATRIOT Act was 
being used, specifically with respect to national security letters and 
the use of ``exigent letters.'' Without this oversight, we probably 
never would have found out about those abuses. But we found out about 
them and we worked with the FBI to correct those matters.
  That brings us to today. The Senate has the opportunity to reexamine 
and redefine key PATRIOT Act provisions, and I think we should take 
that opportunity to make improvements to our

[[Page S3249]]

current law. That is why I have led the Senate Judiciary Committee to 
diligently consider these matters through a series of hearings and 
meetings. The committee responded by reporting improvements, both last 
year and again this year, through bipartisan legislation. They are good 
measures, and we have worked to ensure that they would not compromise 
the effectiveness of our law enforcement and intelligence capabilities. 
In fact, much of the language was derived after consultation with the 
administration, including the intelligence community.
  The Attorney General and others have repeatedly assured us that the 
measures to enhance oversight and accountability--such as audits and 
public reporting--would not sacrifice ``the operational effectiveness 
and flexibility needed to protect our citizens from terrorism'' or 
undermine ``the collection of vital foreign intelligence and 
counterintelligence information.''
  In fact, the Attorney General has consistently said the bill passed 
out by the Senate Judiciary Committee struck ``a good balance'' by 
extending the PATRIOT Act authorities while adding accountability and 
civil liberties protections. For additional detail and legislative 
history, I refer Senators to the Senate report on the bill reported by 
the Senate Judiciary Committee this year, Senate Report No. 112-13.
  I ask unanimous consent that a December 9, 2010, letter from the 
Attorney General to me making these points be printed in the Record, 
along with a February 19, 2010, letter from the Director of National 
Intelligence to House leaders.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Unfortunately, the bill now before the Senate merely 
extends the expiring authorities to June 1, 2015. Regrettably, these 
authorities have not been refined since 2006. If that remains the case 
through the extensions that are contemplated by this bill, it will 
amount to 9 years of this law without any legislative improvement. I 
think most of us understand that we can do better. The amendment I have 
filed seeks to change that by improving the PATRIOT Act.
  I appreciate the efforts made by the majority leader to craft a 
compromise. I am sorry that the Republican leadership in Congress has 
insisted on an extension of authorities without any improvements. The 
amendment I have filed and wish to offer along with Senators Paul, 
Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin, 
Durbin, Merkley, Boxer, and Akaka, makes significant improvements to 
current law, promotes transparency, and expands privacy and civil 
liberties safeguards.
  I ask unanimous consent to have a sectional analysis of the amendment 
printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. LEAHY. One of the improvements Congress should make is to repair 
a constitutional infirmity in the current law. Three years ago, in Doe 
v. Mukasey, the U.S. Court of Appeals for the Second Circuit found that 
the nondisclosure provision of the statute authorizing issuance of 
national security letters was constitutionally defective. If we do not 
make a change, that constitutionally defective part of the national 
security letter provision would remain. As part of the comprehensive 
set of reforms in the bill reported favorably by the Judiciary 
Committee, I proposed a simple statutory fix that would enable the FBI 
to obtain the information it needs, while addressing the constitutional 
concerns. In fact, this proposal has never been controversial. In fact, 
during the last Congress, Senator Sessions and Senator Bond, the 
ranking Republicans on the Senate Judiciary and Intelligence 
Committees, cosponsored a bill incorporating the very legislative 
remedy I proposed.
  This is a straightforward matter that needs to be fixed. The 
underlying bill does not fix the problem; our amendment would. I trust 
Senators would not want to proceed to vote on an unconstitutional law, 
one that violates our fundamental charter as a nation and, of course, 
the liberty of all Americans. No one who claims to honor the 
Constitution should proceed in so cavalier a manner. If we are to 
restore the constitutional underpinning of the NSL authority, the 
Senate should adopt this needed improvement.
  I am also troubled by the refusal of the Republican leadership to 
agree on periodic audits on the use by the government of PATRIOT Act 
surveillance authorities. When I speak of the Republican position, I 
want to mention that this is not uniform within the Republican Party, 
as there are many Republicans who believe we should have these audits. 
Basic transparency and accountability are vital to ensuring that the 
government does not overstep its legal authority. We grant many 
authorities to our government, but we should do so with the confidence 
that if the Government oversteps its authority, Congress has the power 
to bring it back in line. In fact, it is only because of the audits 
that were mandated by the 2006 PATRIOT Act reauthorization bill that 
the American public became aware of some of the abuses and misuses of 
the national security letters, which were significant.
  Without that public accountability and congressional oversight, the 
FBI would not have made improvements to its system of tracking NSL 
issuance. Because of those audits, we are more confident today that FBI 
agents are following proper procedures for obtaining private 
information about Americans--rather than improperly using ``exigent 
letters'' to circumvent the rules, or using Post-it Notes to keep track 
of records. Yet the underlying bill omits audits and public reporting; 
our amendment includes important audit requirements and public 
reporting to provide accountability and protect Americans' rights.
  No one can seriously contend that audits by the inspector general of 
past operations present any operational concerns to law enforcement or 
intelligence gathering. Audits do not interfere; they provide 
accountability and ensure that government follows the rules.
  Mr. President, you and I and 98 other Members of this body have to 
follow the rules. Certainly, those in law enforcement should have to 
follow the rules, as well. These audits have been demonstrated to be 
vital oversight tools, and they should be incorporated into the law. 
The language in our amendment is the product of more than a year and a 
half of extensive negotiations with Republicans and Democrats, the 
intelligence community, the Department of Justice. This year, the 
Senate Judiciary Committee bill won the support of Senator Lee. Last 
Congress, a virtually identical bill received the votes of Senators Kyl 
and Cornyn and was reported favorably by the Senate Judiciary Committee 
to the Senate. The bipartisan amendment we seek to offer is a 
reasonable package of reforms that preserves the ability of the 
government to use the PATRIOT Act surveillance tools, while promoting 
transparency, accountability, and oversight.
  I have often said that the Senate should not shirk its duty to 
reexamine carefully and critically the provisions of the PATRIOT Act. 
We should consider ways to improve the law consistent with our core 
constitutional principles. That is what I have tried to do. That is 
what Vermonters expect. I intend to vigilantly guard Americans' privacy 
and civil liberties, while doing all I can to keep all Americans 
secure. That is what we expect in Vermont, and I must assume that is 
what we expect in the other 49 States. Without a single improvement or 
reform, without even a word that recognizes the importance of 
protecting the civil liberties and constitutional privacy rights of 
Americans, the underlying bill represents a missed opportunity. Let us 
provide our law enforcement and intelligence professionals with the 
tools they need and give these professionals the security and certainty 
they need to protect our Nation. But let us also at the same time 
faithfully perform our duty to protect the constitutional principles 
and civil liberties upon which this Nation was founded and on which the 
American people depend.
  The vast majority of the 300 million Americans in this great country 
are law-abiding, honest men and women. We should protect against 
arbitrarily lumping them all into the category of potential 
lawbreakers, or enabling the government to search homes or businesses 
without proper reason. We fought a revolution in this country to stop 
that from happening, and it is no different today.

[[Page S3250]]

  One of the things that has kept us so strong as a nation is our 
ability to protect the individual rights of all Americans. We can go 
after the lawbreakers, just as we got Osama bin Laden, while at the 
same time protecting the principles of our country. We must not let the 
terrorists win by compromising our own rights and liberties in this 
country. The terrorists who seek to harm us would certainly take away 
from all of us--women and men alike--the constitutional rights we hold 
dear. We must not allow that.
  The American people expect us both to protect our rights and to keep 
us safe, and I believe our amendment does just that. That is why I hope 
all Senators will support the Leahy-Paul amendment.

                               Exhibit 1

                                 Washington, DC, December 9, 2010.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy: This responds to your letter of March 
     17, 2010, which asked the Department of Justice to consider 
     implementing administratively certain enhanced civil 
     liberties protections that were included in S. 1692, the USA 
     PATRIOT Act Sunset Extension Act, as reported by the Senate 
     Judiciary Committee.
       In my letter of November 9, 2009, I expressed strong 
     support on behalf of the Department for the bill as reported, 
     which would reauthorize several important Foreign 
     Intelligence Surveillance Act (FISA) authorities while 
     enhancing protections for civil liberties and privacy in the 
     exercise of these essential national security tools.
       The bill would reauthorize section 206 of the USA PATRIOT 
     Act, which provides authority for roving surveillance of 
     targets who take steps that thwart FISA surveillance; section 
     215 of the USA PATRIOT Act, which provides authority to 
     compel production of business records and other tangible 
     things with the approval of the Foreign Intelligence 
     Surveillance Court (the FISA Court); and section 6001 of the 
     Intelligence Reform and Terrorism Prevention Act, which 
     provides authority to target with FISA searches or 
     surveillance non-United States persons who engage in 
     international terrorist activities but are not necessarily 
     associated with an identified terrorist group. Earlier this 
     year, Congress acted to extend the expiring authorities until 
     February 28, 2011. As that date approaches, I strongly urge 
     that Congress again take action to ensure that these 
     provisions remain in force.
       Assuming these authorities are reauthorized, the Department 
     has determined that many of the privacy and civil liberties 
     provisions of S. 1692 can be implemented without legislation. 
     Indeed, in a number of instances, we have already taken steps 
     to do so. I am confident that these measures will enhance 
     standards, oversight, and accountability, especially with 
     respect to how information about U.S. persons is retained and 
     disseminated, without sacrificing the operational 
     effectiveness and flexibility needed to protect our citizens 
     from terrorism and facilitate the collection of vital foreign 
     intelligence and counterintelligence information.

                       National Security Letters

       Your letter seeks our response regarding several matters 
     related to National Security Letters (NSLs): notification to 
     recipients of NSLs of their opportunity to contest the 
     nondisclosure requirement; issuance of procedures related to 
     the collection, use and storage of information obtained in 
     response to NSLs; retention of a statement of specific facts 
     that the information sought is relevant to an authorized 
     investigation; and increased public reporting on the use of 
       You will be pleased to know that as of February 2009, all 
     NSLs are required to include a notice that informs recipients 
     of the opportunity to contest the nondisclosure requirement 
     through the government initiated judicial review. In most 
     cases, this notice is automatically generated by the NSL 
     subsystem. Domestic Investigations and Operations Guide 
     (DIOG) 11.9.3.E. The FBI also will ensure that in any case in 
     which a recipient challenges a nondisclosure order, the 
     recipient is notified when compliance with the order is no 
     longer required. Thus far, there have been only four 
     challenges to the non-disclosure requirement, and in two of 
     the challenges, the FBI permitted the recipient to disclose 
     the fact that an NSL was received. If and when the volume of 
     such requests becomes sufficiently large that solutions 
     beyond ``one-off' notifications are required, the FBI will 
     develop appropriate policies and procedures to notify the 
     recipient when non-disclosure is no longer required.
       I also am pleased to report that I approved Procedures for 
     the Collection, Use and Storage of Information Derived from. 
     National Security Letters on October 1, 2010, and these 
     procedures have been provided to the Judiciary and 
     Intelligence Committees. The FBI's current practice is 
     consistent with the procedures and the FBI is working on 
     formal policy to implement them. In addition, DOJ and ODNI 
     will shortly complete work on a joint report to Congress on 
     NSL ``minimization'' as required by the PATRIOT 
     Reauthorization Act of 2005.
       As to the information retained internally in connection 
     with the issuance of NSLs, it is current policy for the FBI 
     to retain a statement of specific facts showing that the 
     information sought through NSLs is relevant to an authorized 
     investigation. DIOG Sec. 11.9.3.C.
       The Department appreciates the desire of the Committee for 
     enhanced public reporting on the use of NSLs. Accordingly, 
     although the FBI cannot provide information regarding 
     subcategories of NSLs in a public setting, it will continue 
     to report publicly the aggregate numbers of NSLs on an annual 
     basis and will evaluate whether any additional information 
     can be publicly reported. 


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