Executive Summary
Congress recently approved a temporary ex-tension of three controversial surveillance provi-sions of the USA Patriot Act and successor leg-islation, which had previously been set to expireat the end of February. In the coming weeks, law-makers have an opportunity to review the sweep-ing expansion of domestic counter-terror pow-ers since 9/11 and, with the benefit of a decade’sperspective, strengthen crucial civil-liberties safe-guards without unduly burdening legitimate in-telligence gathering. Two of the provisions slatedfor sunset—roving wiretap authority and the so-called “Section 215” orders for the productionof records—should be narrowed to mitigate therisk of overcollection of sensitive informationabout innocent Americans. A third—authority toemploy the broad investigative powers of the For-eign Intelligence Surveillance Act against “lonewolf” suspects who lack ties to any foreign terrorgroup—does not appear to be necessary at all.More urgent than any of these, however, isthe need to review and substantially modify thestatutes authorizing the Federal Bureau of In- vestigation to secretly demand records, withoutany prior court approval, using National Secu-rity Letters. Though not slated to sunset withthe other three Patriot provisions, NSLs werethe focus of multiple proposed legislative re-forms during the 2009 reauthorization debates,and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconsti-tutional, and the government’s own internal au-dits have uncovered widespread, systematic mis-use of expanded NSL powers. Congress shouldresist recent Justice Department pressure to fur-ther broaden the scope of NSL authority—and,indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertainconstitutional status of NSLs, a sunset shouldbe imposed along with more robust reportingand oversight requirements.
Leashing the Surveillance State
How to Reform Patriot Act Surveillance Authorities
by Julian Sanchez
No. 675May 16, 2011
Julian Sanchez is a Cato Institute research fellow.
Introduction
It is nearly a decade now since Congressresponded to the terror attacks of 9/11 by granting its hasty approval to the USA Pa-triot Act,
a sprawling piece of legislationcomprising hundreds of amendments toan array of complex intelligence and law en-forcement statutes.
1
As the
Washington Post
noted at the time, “members of both par-ties complained they had no idea what they were voting on, were fearful that aspects of the . . . bill went too far—yet voted for it any-way.”
2
Recognizing that Patriot had signifi-cantly expanded government surveillanceauthorities with minimal deliberation, Con-gress established expiration dates for 16of the Act’s most controversial provisions.It similarly established a sunset for the so-called “Lone Wolf” provision of the Intelli-gence Reform and Terrorism Prevention Actof 2004, which allowed non–U.S. persons tobe monitored under the aegis of the ForeignIntelligence Surveillance Act even if they were unaffiliated with any foreign power.
3
In 2005, Congress made 14 of those provi-sions permanent, but retained sunsets forthe Lone Wolf provision, as well as Patriot Act provisions authorizing the secretive For-eign Intelligence Surveillance Court to issuewarrants for “roving wiretaps” and broadorders compelling the production of busi-ness records or any other “tangible thing.”
4
In the process, legislators added a number of safeguards aimed, in part, at assuaging theconcerns of civil libertarians.
5
In late 2009, as the sunset date loomed,the judiciary committees of both the Houseand Senate held extensive hearings to con-sider how these new powers had been usedand what modifications to the existing stat-utes might be appropriate.
6
Additionally, inresponse to a series of increasingly damningreports from the Justice Department’s Officeof the Inspector General, showing large-scaleand systematic abuse of the Patriot Act’s ex-panded authority to issue National Security Letters,
7
Congress held further hearings fo-cused on these powerful tools, which allow the Federal Bureau of Investigation to de-mand a wide array of telecommunicationsand financial records without judicial ap-proval.
8
The hearings and associated debate gen-erated both substantial press coverage
9
andan array of substantive reform bills.
10
Ulti-mately, however, and despite a temporary short-term extension aimed at allowingfurther debate, Congress passed—and Presi-dent Obama signed—a one-year reauthori-zation of the expiring provisions withoutmodification.
11
The rationale for the limited reauthori-zation was that the intervening time wouldbe used for fruitful deliberation on neededreforms, but that hope was not borne out.Until February, there had been almost nofurther debate in Congress concerning theexpiring Patriot provisions or the pressingneed for National Security Letter reform,and press attention had been correspond-ingly scant. At least some legislators, however, appearto be growing weary of these deferrals. Thesame one-year reauthorization that easily garnered the two-thirds majority requiredfor fast-track passage in 2009 fell short thisyear, to the surprise of many observers.
12
Instead, Congress approved an extensionof the expiring provisions for just threemonths, with leaders in both parties pledg-ing that there would now—finally—be seri-ous deliberation on the need for substantivereform.
13
As of this writing, most of the legislativeproposals that have been advanced involveeither long-term reauthorization withoutalteration or modest amendments. Sen. Di-anne Feinstein (D-CA) supports reauthori-zation through the end of December 2013,along with an extension of the controversialFISA Amendments Act of 2008 to the samedate,
14
while Sen. Chuck Grassley (R-IA) isseeking permanent reauthorization of theexpiring provisions.
15
Sen. Patrick Leahy (D-VT), meanwhile, has reintroduced the
2
The Patriot Actsignificantly expandedgovernmentsurveillanceauthoritieswith minimalCongressionaldeliberation.
relatively mild reform legislation he spon-sored in 2009, which at the time was ap-proved by a bipartisan majority of the Sen-ate Judiciary Committee.
16
With additional time for deliberation,however, Congress should consider morefar-reaching changes. With minor modifica-tions, the roving wiretap provision can safely be made permanent, providing greater clar-ity and certainty to intelligence investigators.The Section 215 “tangible things” provision,by contrast, requires additional Congressio-nal scrutiny: it should be extended only in a narrowed form, and with further reportingand auditing requirements. The Lone Wolf provision, which as of last year the JusticeDepartment said had never been used, cansimply be allowed to expire. (In the eventthat consensus has not been achieved whenthe new deadline arrives, there is little reasonto believe their expiration would cause any near-term impediment to intelligence gath-ering: all three sunsetting provisions havebeen used fairly sparingly, and are, in any event, subject to a grandfather clause thatwould permit their continued use for investi-gations already underway.
17
)Most importantly, Congress should nar-row the scope of National Security Letters,which have already proven susceptible towidespread abuse, and which federal courtshave already found to be seriously constitu-tionally defective in their current form. Atan absolute minimum, a series of procedur-al safeguards that the Justice Departmenthas already agreed to implement on a vol-untary basis should be codified in statute.Even with these added constraints, a new sunset for expanded NSL authorities shouldbe established, along with mandatory audit-ing by the Office of the Inspector General,to ensure that they are subject to adequatecongressional review.I now turn to consider each of the sun-setting provisions, as well as National Se-curity Letters, in detail. While many of thearguments below are framed in terms of theconstitutional limits on government surveil-lance, they also provide policy grounds forreform. Insofar as these provisions imposeheavier burdens on core privacy, speech, andassociation interests than is necessary to theprotection of national security that shouldbe sufficient reason to seek a better balanceregardless of where one comes down on thelegal question.
The Lone Wolf Provision
The extraordinary tools available to in- vestigators under the Foreign IntelligenceSurveillance Act, passed over 30 years ago inresponse to revelations of endemic executiveabuse of spying powers,
18
were originally de-signed to cover only “agents of foreign pow-ers.” The Lone Wolf provision severed thatnecessary link for the first time, authoriz-ing FISA spying within the United States onany “non-U.S. person” (that is, anyone not a citizen or legal permanent resident) who “en-gages in international terrorism or activitiesin preparation therefor,” and allowing thestatute’s definition of an “agent of a foreignpower” to apply to suspects who, bluntly put,are not in fact agents of any foreign power. According to a letter sent to Senator Leahy in September of 2009 by Assistant Attorney General Ronald Weich, the Lone Wolf provi-sion’s authority had never been invoked as of that date, and there has been no indicationthat it has been used since.
19
As with many post-9/11 intelligence re-forms, the Lone Wolf provision has its gen-esis in the misguided assumption that every intelligence failure is evidence that investiga-tors lack sufficient surveillance authority—a convenient scapegoat—while internal insti-tutional dysfunction often bears the lion’sshare of the blame.
20
In the aftermath of theattacks, it was initially alleged that FBI inves-tigators who had wanted to obtain a warrantto search the laptop of so-called “20th hijack-er” Zacarias Moussaoui were unable to do sobecause FISA lacked such a Lone Wolf provi-sion. This claim, according to the Congressio-nal Research Service, provided the “historicalimpetus” for Lone Wolf authority.
21
3
Congress shouldnarrow the scopeof NationalSecurity Letters,which havealready provensusceptible towidespreadabuse.
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Leashing the Surveillance State: How to Reform Patriot Act Surveillance Authorities, Cato Policy Analysis No. 675
Congress recently approved a temporary extension of three controversial surveillance provisions of the USA Patriot Act and successor legislation, which had previously been set to expire at the end of February. In the coming weeks, lawmakers…
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