22-475
2005
109TH CONGRESS 1ST SESSION
HOUSE OF REPRESENTATIVES
Rept. 109-174
JULY 18, 2005- Ordered to be printed
USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
22-475
2005
109TH CONGRESS 1ST SESSION
HOUSE OF REPRESENTATIVES
Rept. 109-174
JULY 18, 2005- Ordered to be printed
1st Session
Part 1
--USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
[To accompany H.R. 3199]
[Including cost estimate of the Congressional Budget Office]
| CONTENTS | Page | |
| The Amendment | 2 | |
| Purpose and Summary | 5 | |
| Background and Need for the Legislation | 6 | |
| Hearings | 47 | |
| Committee Consideration | 47 | |
| Vote of the Committee | 47 | |
| Committee Oversight Findings | 71 | |
| New Budget Authority and Tax Expenditures | 72 | |
| Congressional Budget Office Cost Estimate | 72 | |
| Performance Goals and Objectives | 73 | |
| Constitutional Authority Statement | 73 | |
| Section-by-Section Analysis and Discussion | 73 | |
| Changes in Existing Law Made by the Bill, as Reported | 81 | |
| Markup Transcript | 95 | |
| Dissenting Views | 444 |
The amendment is as follows:
Strike all after the enacting clause and insert the following:
H.R. 3199, introduced by Chairman F. James Sensenbrenner, Jr., on July 11, 2005, would reauthorize the expiring provisions in the USA PATRIOT Act and two provisions in the Intelligence Reform and Terrorism Prevention Act of 2004 that would expire within the next two years, as amended. The bill extended the sunset for 10 years on two of the provisions that had amended the Foreign Intelligence Surveillance Act relating to Foreign Intelligence Surveillance Court orders for roving wiretaps and for business records.
H.R. 3199 is based on four years of extensive oversight consisting of hearing testimony, Department of Justice Inspector General reports, briefings, and oversight correspondence. Since April of this year alone, this Committee has heard testimony from 35 witnesses during 11 hearings on the USA PATRIOT Act. That testimony and related oversight has demonstrated that the USA PATRIOT Act has been an effective tool against both terrorists and criminals intent on harming innocent people, and therefore deserves to be reauthorized with some modifications. H.R. 3199 accomplishes this objective by reauthorizing provisions set to sunset and making some improvements. The bill modifies the following provisions of USA PATRIOT Act: (1) Section 203(b) to allow for notification to a court that criminal wiretap information has been shared; (2) section 206 to clarify when and where law enforcement is authorized to use a multi-point or roving wiretap; (3) section 207 to further extend the maximum duration of orders for electronic surveillance and physical searches targeted against all agents of foreign powers who are not U.S. persons; (4) section 212 to require an annual report to the House and Senate Judiciary Committees by the Attorney General, which sets forth the number of accounts subject to a section 212 disclosure and a summary of the basis for disclosure in certain circumstances; (5) section 215 to clarify that the information likely to be obtained is reasonably expected to: be (A) foreign intelligence information NOT concerning a U.S. person or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities; (6) section 215 to clarify that a FISA 215 order may be challenged; (7) section 215 to clarify that a recipient of a 215 order may consult with a lawyer and the appropriate people necessary to challenge and comply with the order; (8) section 215 to clarify that the order will only be issued `if the judge finds that the requirements have been met;' (9) section 215 to set up a judicial review process that authorizes the judge to set aside or affirm a 215 order that has been challenged. The bill makes permanent sections 201, 202, 203 (b) and (d), 204, 207, 209, 212, 214, 217, 218, 220, 223, and 225, which were scheduled to sunset on December 31, 2005, and extends until December 31, 2015 the sunset of sections 206 and 215. In addition, the bill makes permanent section 6001 of the Intelligence Reform and Terrorism Prevention Act (IRTPA), which provides an additional definition for `Agent of a Foreign Power,' to cover the `lone wolf' under 50 U.S.C. 1801(b)(1). The legislation repeals section 6603(g) of the IRTPA, which would sunset section 6603, the `Additions to Offense of Providing Material Support to Terrorism'. Finally, H.R. 3199 would enhance security of mass transportation; Department of Justice Inspector General review, and Judicial and Congressional oversight.
The terrorist attacks on the World Trade Center and the Pentagon took more than 3,000 lives, caused billions in economic losses, triggered U.S. military intervention in Afghanistan to topple the Taliban regime, and led to the passage of the USA PATRIOT Act and other anti-terrorism bills. Another example of anti-terror legislation that enhanced law enforcement authorities and improved information sharing was the `Homeland Security Act of 2002, 1
[Footnote] ' which created the Department of Homeland Security. This legislation incorporates H.R. 4598, the `Homeland Security Information Sharing Act' to further improve information sharing with Federal and state and local officials. The Homeland Security Act also updated law enforcement authorities by including: H.R. 3482 (107th), the `Cyber Security Enhancement Act of 2002,' which increased penalties for cybercrimes and cyberterrorism, and H.R. 4864 (107th), the `Anti-Terrorism Explosives Act,' which strengthened penalties for the unlawful possession of explosive materials.
[Footnote 1: Pub. L. No. 107-296.]
To respond to terrorist threats, Congress also has passed legislation to tighten security at America's airports, 2
[Footnote] to fundamentally reform the Immigration and Naturalization Service, 3
[Footnote] and to enhance border security. 4
[Footnote] Congress also created the National Commission on Terrorist Attacks Upon the United States (the `9/11 Commission'), an independent, bipartisan commission created in 2002 to examine the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. In July 2004, the Commission issued `The 9/11 Commission Report: Final Report of the National Commission on Terrorists Attacks Upon the United States.' The 9/11 Commission noted that most of the USA PATRIOT Act provisions are `relatively noncontroversial, updating America's surveillance laws to reflect technological developments in a digital age. Some executive actions that have been criticized are unrelated to the Patriot Act. The provisions in the Act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial. Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy.' 5
[Footnote]
[Footnote 2: Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (2001).]
[Footnote 3: Barbara Jordan Immigration Reform and Accountability Act, 107th Cong. (2002).]
[Footnote 4: Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 107-173, 116 Stat. 543 (2002).]
[Footnote 5: The 9/11 Commission Report: Final Report of the National Commission on Terrorists Attacks Upon the United States p. 394 (2004).]
In addition to these legislative initiatives, the House Committee on the Judiciary has conducted nearly a 100 hearings to better protect the American people against terrorist attacks since September 11, 2001. Many of those hearings examined legislative initiatives that were adopted as part of the `Intelligence Reform and Terrorism Prevention Act of 2004,' 6
[Footnote] which responded to the 9/11 Commission Report and was signed into law on December 17, 2004, and H.R. 418, the `Real ID Act of 2005,' which passed the House by a roll call vote of 229 to 198. 7
[Footnote]
[Footnote 6: Pub. L. No. 108-458, 118 Stat. 3638 (2004).]
[Footnote 7: Roll no. 27.]
1. Congressional Response--the USA PATRIOT Act
To better equip Federal law enforcement and the intelligence community with the resources necessary to confront these modern threats, Chairman Sensenbrenner introduced H.R. 2975, to `Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,' on October 2, 2001. H.R. 2975 was reported unanimously by the Judiciary Committee. The House and Senate combined their versions of the legislation into H.R. 3162, the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,' (USA PATRIOT Act). This legislation incorporated provisions of H.R. 3004 (107th), the `Financial Anti-Terrorism Act,' which increased penalties for money laundering and financing terrorist organizations; and H.R. 3160 (107th), the `Bioterrorism Prevention Act of 2001,' which provided law enforcement personnel greater resources to assess and prevent biological attacks on American soil. The USA PATRIOT Act was signed into law by President Bush on October 26, 2001. 8
[Footnote]
[Footnote 8: Pub. L. No. 107-56, 115 Stat 272 (codified as amended in scattered sections of 18 U.S.C. (2003)).]
The USA PATRIOT Act modernized investigative tools to effectively fight the advanced technologies used by terrorists and criminals. The USA PATRIOT Act also greatly improved information sharing between law enforcement and the intelligence community.
A. Investigative Authorities
The USA PATRIOT Act was designed to assist in the prevention of future terrorist activities as well as in the prevention of a broad range of criminal activity that often furthers those activities. The law increased penalties for Federal terrorism offenses and provided for extended post-incarceration supervised release for persons convicted of such offenses. The bill strengthened Federal money laundering laws, added new terrorism offenses, updated the bioterrorism laws, funded first responders, and modified immigration law to increase the Federal Government's ability to prevent foreign terrorists from entering the United States. The Act also streamlined and updated the investigative authorities for law enforcement and the intelligence community.
`Many of the tools the Act provides to fight terrorism have been used for decades to fight organized crime and drug dealers, and have been reviewed and approved by the courts. As Sen. Joe Biden (D-DE) explained during the floor debate about the Act, `the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What's good for the mob should be good for terrorists.' 9
[Footnote]
[Footnote 9: http://www.lifeandliberty.gov/, citing the (Cong. Rec., 10/25/01).]
Another example of an authority that was codified in the Act is the long-standing discretionary authority of Federal judges to grant law enforcement the authority to use `roving wiretaps' to investigate ordinary crimes, including drug offenses and racketeering, under Federal criminal law. When a judge issues a roving wiretap order, law enforcement can apply the wiretap to a particular suspect, rather than a particular phone or communications device. Drug dealers often use a cell phone, throw it away and use another cell phone, to carry out their illegal activity. Thus, without the authority to use a roving wiretap law enforcement would not be able to effectively investigate these crimes.
Prior to the enactment of the USA PATRIOT Act, a Federal judge could issue an order for a wiretap in a national security or an intelligence investigation similar to a wiretap in a criminal case. The law, however, failed to contain authority similar to the criminal law that allowed a Federal judge to issue a `roving wiretap' order in a national security or an intelligence case. International terrorists and spies are just as sophisticated as drug dealers and are trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones. Accordingly, the USA PATRIOT Act authorized the courts the discretion to grant agents permission to use the same techniques in national security investigations to track terrorists that are used in criminal cases.
[Footnote 10: ]
[Footnote 10: http://www.lifeandliberty.gov/.]
B. Information Sharing
A lack of full, free, and timely information sharing between Federal law enforcement and intelligence agencies had been a problem, long before the 9/11 attacks. Prior to the 9/11 attacks, the Government had made attempts to improve information sharing. For example, different centers, such as the National Drug Intelligence Center, have been created to focus on sharing information on specific issues. While these centers helped, Government-wide improvement was still needed. The lack of information sharing stemmed from the distinct historical roles and cultures of law enforcement and the intelligence community, and from certain legal restrictions.
After the 9/11 attacks, criticism increased that the Intelligence Community, especially the CIA and FBI, failed to share pertinent intelligence information, and as a result, had failed to `connect the dots' in a way that might have uncovered and enabled prevention of the attacks. The criticism was twofold: First, collecting agencies had not integrated and evaluated all the relevant information they had. Second, they had failed to ensure that relevant information they had collected was shared with other agencies that would need it to prevent attacks such as those that occurred.
The Administration and the Congress took immediate action to reduce statutory impediments to sharing appropriate information. First, the USA PATRIOT Act, 11
[Footnote] began to break down the barriers to facilitate information sharing between Federal law enforcement officials and the Intelligence Community. `The premise of the USA-Patriot Act is that information about foreign terrorists acquired by law enforcement agencies, including grand jury information, should be available to intelligence agencies. Analysts would be able to put together the larger picture of groups plotting against U.S. interests.' 12
[Footnote]
[Footnote 11: Pub. L. No. 107-56, 115 Stat. 242.]
[Footnote 12: Richard Best, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. CRS Report #RL30252, December 3, 2001, p. 30.]
As mentioned earlier, H.R. 4598, the `Homeland Security Information Sharing Act' continued the effort to break down barriers by requiring the President to create procedures to strip out classified information so that state and local officials may receive relevant information without clearances. H.R. 4598 also incorporated H.R. 3285, the `Federal-Local Information Sharing Partnership Act of 2001,' to remove the barriers for state and local officials to share law enforcement and intelligence information with Federal officials. H.R. 4598 was added to the Homeland Security Act, which became Public Law No. 107-296.
2. Implementation and Use of the USA PATRIOT Act
Since enactment of the USA PATRIOT Act, the Department of Justice has used many of the tools authorized in the Act in a comprehensive campaign to detect and prosecute those who have committed, or seek to commit, terrorist crimes. For example, as of the fall of 2004, the Department of Justice has conducted terrorism investigations that have resulted in the charging of 310 defendants with criminal offenses, of whom 179 have already been convicted. These investigations have led to the discovery and disruption of over 150 terrorist cells. In addition, the tools provided by the USA PATRIOT Act have enabled the Federal Government to remove from the United States over 515 individuals who were linked to the September 11th investigation. The Federal Government has also been able to secure at least 23 convictions or guilty pleas as the result of 70 terrorist financing investigations. Importantly, these examples, and all other activities conducted under the authorities of the USA PATRIOT Act, have occurred without a single substantiated allegation of civil liberties violations on the part of Department of Justice employees. 13
[Footnote]
[Footnote 13: As of the September 13, 2004 Report Congress on the Implementation of Section 1001 of the USA PATRIOT Act, only one allegation of civil liberties violations may be related to the use of a USA PATRIOT Act provision, and the investigations relating to this allegation are still underway.]
A. Oversight Hearings during the 109th Congress
During the 109th Congress, the Committee on the Judiciary held 2 Full Committee and 8 Subcommittee oversight hearing on all of the provisions of USA PATRIOT Act that will expire on December 31, 2005 and several that are not subject to the sunset.
1. May 6, 2005, Hearing with Attorney General Gonzales
On May 6, 2005, Attorney General Gonzales testified before the Full Committee on the Judiciary. That hearing focused on the use of the law enforcement authorities granted under the USA PATRIOT Act; whether these tools have, thus far, proved useful to the Government's efforts in fighting terrorism; whether existing safeguards have been effective in preventing civil liberties violations; and whether modifications to the Act are needed.
2. June 8, 2005, Hearing with Deputy Attorney General James B. Comey
On Wednesday, June 8, 2005, at 10:00 a.m., the Committee on the Judiciary held its 11th oversight hearing on the Reauthorization of the USA PATRIOT Act with Deputy Attorney General James B. Comey testifying on the need to Reauthorize the USA PATRIOT Act provisions set to expire on December 31, 2005. This hearing followed the 10 subcommittee hearings and provided Members and the Department of Justice the opportunity to address any
unanswered questions regarding the USA PATRIOT Act.
3. June 10, 2005, Hearing continuation of June 8, 2005
In accordance with House Rule XI, section 2 (J)(1), additional witnesses designated by the minority were called to testify on the subject of the `Reauthorization of the USA PATRIOT Act,' as an extension (or a continuation) of the Committee's June 8, 2005 hearing. The witnesses were: Carlina Tapia-Ruano, American Immigration Lawyers Association; Dr. James J. Zogby, Arab American Institute; Deborah Pearlstein, U.S. Law and Security Program; and Chip Pitts, Amnesty International USA.
1. April 19, 2005, Hearing on Sections 203 (b) and (d) of the USA PATRIOT Act and Their Effect on Information Sharing
The Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary held a hearing on sections 203 (b) and (d) that addressed information sharing. These sections responded to the need to improve information sharing. Four witnesses--Mr. Barry Sabin, Chief of the Counterterrorism Section of the Criminal Division of the Department of Justice; Ms. Maureen Baginski, Executive Assistant Director of the FBI for Intelligence; Congressman Michael McCaul; and Timothy Edgar, the National Security Policy Counsel for the American Civil Liberties Union--testified.
Specifically, section 203 facilitates effective sharing of information collected through the use of criminal wiretaps, grand juries, and other criminal investigations, with Executive Branch officials. To protect privacy, the USA PATRIOT Act: (1) limits such disclosures to foreign intelligence and counterintelligence information, as defined by statute; (2) restricts disclosure to officials with a need to know in performance of official duties; and (3) retains the limitations on public or other unauthorized disclosure. Prior to passage of the USA PATRIOT Act, the law hampered law enforcement from sharing information with or receiving information from other government agencies outside of law enforcement that might nevertheless relate to terrorist activities or national security.
Sec. 203(b) deals with information obtained through a criminal wiretap. The section amended section 2517 of title 18 to allow law enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained through a criminal wiretap with law enforcement, intelligence, protective, immigration, national defense, or national security personnel for use only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. This language was similar to section 103 of H.R. 2975 that passed the House Judiciary Committee unanimously in October 2001.
Sec. 203(d) addresses information obtained through a criminal investigation. This section permits law enforcement officials to share foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title) obtained through a criminal investigation, for use only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. This language was similar to section 154 of H.R. 2975 that passed the House Judiciary Committee unanimously in October 2001.
2. April 21, 2005, Hearing on--Crime, Terrorism, and the Age of Technology--(Section 209: Seizure of Voice-Mail Messages Pursuant to Warrants; Section 217: Interception of Computer Trespasser Communications; and Section 220: Nationwide Service of Search Warrants for Electronic Evidence)
The Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on section 209, 217, and 220 of the USA PATRIOT Act. Four witnesses--Laura Parsky, Deputy Assistant Attorney General of the Criminal Division, U.S. Department of Justice; Steven M. Martinez, Deputy Assistant Director of the Cyber Division, Federal Bureau of Investigation; James X. Dempsey, Executive Director of the Center for Democracy and Technology; and Peter Swire, Professor of Law, Mortiz College of Law, the Ohio State University--testified.
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to update the 1968 Wiretap Act, recognizing that emerging technologies--such as electronic mail and voice mail--had rendered the 1968 statute outdated and inadequate. These 1986 modifications made the criminal code `technology neutral' to address future telecommunications technologies. `Technology neutral' means law enforcement investigative authorities remain the same regardless of the technology used by the criminal to facilitate illegal activity. Thus, law enforcement uses the same procedures to seek a court order for a wiretap of a computer or a phone used by the criminal.
As expected, cyber technology has advanced rapidly. As a result, people communicate quickly and effectively. Unfortunately, technology has also facilitated crime and terrorism.
Understanding these problems, the USA PATRIOT Act updated criminal law to address these new challenges. These updates also were designed to help law enforcement assess whether unlawful conduct is the result of criminal activity or terrorist activity and to respond appropriately. Some of these provisions are set to expire on December 31, 2005. The April 21, 2005 hearing covered three of those provisions: Sections 209, 217, and 220.
Sec. 209. Seizure of Voice-Mail Messages Pursuant to Warrants. Section 209 amended 18 U.S.C. Sec. 2703 (a) and (b) by adding language to cover stored wire communications--such as a voice mail. Section 209 updated the law to clarify that the criminal code remains technology-neutral. Section 209 clarified that stored voice mail is, in fact, a stored communication, and therefore is covered by 18 U.S.C. 2703. This language is similar to section 102 of H.R. 2975 that passed the House Judiciary Committee unanimously.
Sec. 217. Interception of Computer Trespasser Communications. The courts have long recognized that providers of communications services possess a `fundamental right to take reasonable measures to protect themselves and their properties against the illegal acts of a trespasser.' Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 1967). Computer owners, however, often lack the expertise, equipment, or financial resources required to monitor attacks, and thus had no way to exercise their rights to protect themselves from unauthorized attackers--who could be terrorists or criminals engaged in attacking critical infrastructure, or the economy. Prior to the enactment of the USA PATRIOT Act, the law was unclear as to whether a victim of computer trespassing was allowed to request law enforcement assistance in monitoring unauthorized attacks as they occur.
These attacks come in many forms that cost companies and citizens millions of dollars and endanger public safety. For instance, denial-of-service attacks, where the objective of the attack is to disable a computer system, can shut down businesses or emergency responders or national security centers. This type of attack causes the target site's servers to run out of memory, and become incapable of responding to the queries of legitimate customers or users. The victims of these computer trespassers should be able to authorize law enforcement to intercept the trespassers' communications, similar to a store owner who authorizes the police to stop an intruder. To correct this problem, and help to protect national security, section 217 of the Act amended the wiretap statute to allow victims of computer attacks to authorize persons `acting under color of law' to monitor trespassers on their computer systems in a narrow class of cases.
Sec. 220. Nationwide Service of Search Warrants for Electronic Evidence. Prior to the enactment of the USA PATRIOT Act, Rule of the Federal Rules of Criminal Procedure of Criminal Procedure 41 required that the `warrant' be obtained `within the district' where the property to be searched is located. An investigator, for example, located in Boston who is investigating a suspected terrorist in that city, might have to seek a suspect's electronic e-mail from an Internet service provider (ISP) account located in California. The investigator would then need to coordinate with agents, prosecutors, and judges in the district in California where the ISP is located to obtain a warrant to search. Time delays caused by the need to coordinate with numerous parties could be devastating to an investigation, especially where additional criminal or terrorist acts are planned.
Section 220 of the Act amended 18 U.S.C. 2703 to authorize the court with jurisdiction over the investigation to issue the warrant directly, without requiring the intervention of its counterpart in the district where the ISP is located. Before and after the USA PATRIOT Act, 18 U.S.C. 2703(a) requires a search warrant to compel service providers to disclose unopened e-mails. The USA PATRIOT Act did not affect the requirement nor the probable cause standard for a search warrant, 14
[Footnote] but rather addresses investigative delays caused by the cross-jurisdictional nature of the Internet. This language is similar to section 108 of H.R. 2975 that passed the House Judiciary Committee unanimously.
[Footnote 14: The government must receive court authorization through a search warrant to search or seize property or a person, with limited exceptions. For a search warrant to be issued, the government must provide sworn affidavit to the magistrate that grounds exists or there is probable cause to believe ground exist--i.e., a crime is or is about to be committed.]
3. April 26, 2005 Hearing--Have Sections 204, 207, 214 and 225 of the USA PATRIOT Act, and Sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2004, Improved FISA Investigations?
On Tuesday, April 26, 2005, the Subcommittee held a hearing to examine sections 204, 207, 214, and 225 of the USA PATRIOT Act, and sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2004. Three witnesses--the Honorable Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania; James Baker, Office for Intelligence Policy and Review, U.S. Department of Justice; and Suzanne Spaulding, Managing Director, the Harbour Group, LLC--testified.
Sec. 204. Clarification of Intelligence Exceptions from Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications (18 U.S.C. 2511(2)(f)). This section amended section 2511(2)(f) of the Federal criminal code, which provided that Federal criminal law relating to law enforcement electronic surveillance (chapter 119, title 18) and access to stored communications and communications transactions records (chapter 121, title 18) did not affect the use of the Foreign Intelligence Surveillance Act (FISA) for intelligence purposes. Section 204 is a technical clarification amendment, which added that chapter 206 of title 18 is also covered by section 2511(2)(f). Thus, Federal criminal law relating to the use of pen registers and trap and trace devices under chapter 206 did not affect the use of FISA for intelligence purposes.
Sec. 207. Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power. Prior to enactment of the USA PATRIOT Act, the government had 90 days to carry out surveillance under a FISA court order and 45 days to conduct a physical search under FISA, before seeking an extension. Because it often takes longer than these established periods to get on the premises or to conduct electronic surveillance and the delay in reapplying for an extension or new order posed a threat to national security, this provision added 30 days to the authorized period for surveillance from 90 days to 120 days. It also extended the period for physical searches from 45 days to 90 days.
Sec. 214. Pen Register and Trap and Trace Authority Under FISA. Section 214 of the Act amends 50 U.S.C. Sec. 1842 (Section 402 of the Foreign Intelligence Surveillance Act of 1978 (FISA)). Section 1842 is the pen register and trap and trace provision in the FISA that is modeled after Federal criminal law provisions (18 U.S.C. 3121 et. seq.). A pen register gathers out-going telephone or Internet-dialed numbers and a trap and trace gathers incoming numbers. This is the least intrusive method of electronic surveillance. Section 214 amends FISA (the pen register and trap and trace provisions) to mirror similar provisions that currently exist in criminal law (18 U.S.C. 3121 et. seq.). Prior to the enactment of the USA PATRIOT Act, the `pen register and trap and trace' provisions of FISA went beyond the criminal law requirement of certification of relevance, and required the Government to provide information that demonstrated that the communication instrument (e.g., a telephone line) has been or was about to be used to contact a `foreign power' or agent of a foreign power. This was a greater burden than exists in even a minor criminal investigation.
Section 214 clarifies that an application for pen register and trap and trace authority under FISA will be the same as the pen register and trap and trace authority defined in the criminal law. It requires the attorney for the government to certify to the court that the information sought is relevant to an ongoing FISA investigation. The statutory burden under FISA of having to show that the telephone line has been, or is about to be used, to contact a foreign power or terrorist is eliminated to conform to the existing and less burdensome criminal standards. The attorney for the government still must certify the information sought is relevant to an ongoing FISA investigation, which continues to be directed at an agent of a foreign power. This section codifies lawfulness of court authorized pen register and trap and trace device use for non-content communications over telecommunication technology other than by telephone. 15
[Footnote] Section 214 of the Act is substantively similar to section 155 of H.R. 2974, the House version that passed the Judiciary Committee unanimously. Section 214 includes protections for U.S. persons, which prohibit the investigation from being conducted based solely on activities protected by the First Amendment.
[Footnote 15: 50 U.S.C. 1842.]
Sec. 225. Immunity for Compliance with FISA Wiretap. While Federal criminal wiretap law immunizes those who assist law enforcement in the execution of a criminal wiretap interception order, 18 U.S.C. 2511(2)(a), this section provides immunity to anyone who complies with a FISA surveillance (wiretap) order.
Section 6001 of the Intelligence Reform and Terrorism Prevention Act. Individual Terrorists as Agents of Foreign Powers. This section amends the definition of `Agent of a Foreign Power' under section 50 U.S.C. Sec. 1801(b)(1) (the Foreign Intelligence Surveillance Act of 1978) by adding new subparagraph C. Section 1801(b)(1) defined `Agent of a foreign power' for any person other than a United States person, who--
Section 6002 of the Intelligence Reform and Terrorism Prevention Act. Additional Semiannual Reporting Requirements Under the Foreign Intelligence Surveillance Act. The section also includes additional reporting requirements to the House and Senate Judiciary Committees regarding the use of FISA.
4. April 28, 2005, Hearing--Have Sections 206 and 215 Improved FISA Investigations?
On Thursday, April 28, 2005, the Subcommittee held a hearing to examine sections 206 and 215 of the USA PATRIOT Act. Four witnesses--the Honorable Kenneth L. Wainstein, U.S. Attorney for the District of Columbia; James Baker, Office for Intelligence Policy and Review, U.S. Department of Justice; Robert Khuzami, former Assistant United States Attorney in the United States Attorney's Office for the Southern District of New York; and Greg Nojeim, the Associate Director and Chief Legislative Counsel of the American Civil Liberties Union's Washington National Office--testified.
Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978. This section amends 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) to update the authority to allow a court to authorize a `roving wiretap' `in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person,' that a common carrier, landlord, custodian, or other person not specified in the Court's order be required to furnish the applicant information and technical assistance necessary to accomplish electronic surveillance in a manner that will protect its secrecy and produce a minimum of interference with the services that such person is providing to the target of electronic surveillance.' This language was the same as the language in section 152 of H.R. 2975 that passed the House Judiciary Committee unanimously in the 107th Congress.
Federal judges have had the discretion for decades to grant law enforcement the authority to use `roving wiretaps' to investigate ordinary crimes, including drug offenses and racketeering, under Federal criminal law. When a judge issues a roving wiretap order, law enforcement can apply the wiretap to a particular suspect, rather than to a particular phone or communications device.
While international terrorists and spies are just as sophisticated as drug dealers and are trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones, the law prior to the USA PATRIOT Act did not contain authority similar to the criminal law that allowed a Federal judge to issue a `roving wiretap' order in a national security or intelligence case. As a result, the Government had to return to the FISA court for an order that named the new carrier, landlord, etc., before effecting surveillance each time the terrorist or spy threw away his or her cell phone and used a different cell phone. Under section 206 of the USA PATRIOT Act, the FBI presents the newly discovered carrier, landlord, custodian, or other person with a generic order issued by the court, and the FBI can then effect FISA coverage as soon as it is technically feasible.
Sec. 215. Access to Records and Other Items Under the Foreign Intelligence Surveillance Act. Prior and subsequent to enactment of the USA PATRIOT Act, law enforcement could obtain records from all manner of businesses through grand jury-issued subpoenas. Targets of grand jury investigations do not have standing to challenge a grand jury subpoena directed at a third party. This access includes libraries and bookstores, for records relevant to criminal inquiries. For example, in the 1997 Gianni Versace murder case, a Florida grand jury subpoenaed records from public libraries in Miami Beach. In the 1990 Zodiac gunman investigation, a grand jury in Queens, New York, subpoenaed records from the library at Fifth Avenue and 42d Street in Manhattan. Investigators believed that the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked out his books. Section 215 of the USA PATRIOT Act created similar authority, but with more stringent requirements. Section 215 provides the FISA court discretion to issue an order for business records related to `international terrorism and clandestine intelligence activities.' These judicial orders conceivably could be issued to bookstores or libraries, but section 215 does not single them out. Section 215 has a very narrow scope that can only be used: (1) `to obtain foreign intelligence information not concerning a United States person'; or (2) `to protect against international terrorism or clandestine intelligence activities.' 50 U.S.C. Sec. 1861(b)(2).
On April 28, 2005, the United States Attorney for the District of Columbia testified that some of the 9/11 hijackers used libraries in the United States. He stated:
On April 6, 2005 the Attorney General testified before the House Committee on the Judiciary and stated that the FISA court has granted the Department's request for a 215 order 35 times as of March 30, 2005. He went on to state that the Department has not sought a section 215 order to obtain library or book store records, medical records, or gun sale records. He also explained that the provision to date has been used only to obtain driver's license records, public accommodation records, apartment leasing records, credit card records, and subscriber information, such as names and addresses, for telephone numbers captured through court-authorized pen-register devices.
5. April 28, 2005, Hearing--Section 218 of the USA PATRIOT Act--If it Expires Will the `Wall' Return?
On Thursday, April 28, 2005, the Subcommittee held a hearing, which focused on section 218 of the USA PATRIOT Act. Some have argued that Section 218 contributed to lowering the `Wall,' and is set to expire on December 31, 2005. The `Wall' is a metaphorical term that described the legal and administrative constraints created to separate the operations of law enforcement and the intelligence community. Four witnesses--the Honorable Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois; David Kris, former Associate Deputy Attorney General for the Department of Justice; Kate Martin, Director of the Center for National Security Studies; and Peter Swire, Professor of Law at Ohio State University--testified.
Section 218 amended 50 U.S.C. Sec. 1804(a)(7)(B) and 1823(a)(7)(B) (the Foreign Intelligence Surveillance Act) to improve information sharing between law enforcement and the intelligence community. The Foreign Intelligence Surveillance Act limited surveillance and physical search orders to instances where authorities certified that `the purpose' of the order was for foreign intelligence gathering; subsequent case law raised a question of whether it was sufficient to meet `the purpose' requirement that foreign intelligence gathering was `the primary purpose' or whether `the purpose' requirement could be satisfied perhaps when a criminal investigation was not the primary purpose, 743 F.2d 59; 952 F.2d 565. Section 218 makes it clear that foreign intelligence gathering must be `a significant' reason for a FISA application, but need not be the primary purpose, as the courts had interpreted the law to mean. 16
[Footnote] Section 218 of the USA PATRIOT Act has helped to lower the `Wall' that prevented sharing of information between law enforcement and the intelligence community. This section is subject to the December 31, 2005 sunset.
[Footnote 16: In re: Sealed Case No. 02-001, FIS Ct. Rev., No. 02-001, 11/18/02, reversing 71 CrL 615.]
6. May 3, 2005, Oversight Hearing on Sections 201, 202, 213, and 223 of the USA PATRIOT Act and Their Effect on Law Enforcement Surveillance
On Tuesday, May 3, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee held a hearing on the USA PATRIOT Act. The hearing focused on the effect of sections 201, 202, 213, and 223 on law enforcement surveillance. Although section 213 does not sunset, the Committee reviewed this section of the USA PATRIOT Act to accommodate a request of the Minority. Section 213 covers delayed notice search warrants. Four witnesses--the Honorable Michael J. Sullivan, U.S. Attorney for the District of Massachusetts; Chuck Rosenberg, Chief of Staff to the Deputy Attorney General; Heather MacDonald, John M. Olin Fellow at the Manhattan Institute; and the Honorable Bob Barr, former Representative of Georgia's Seventh District--testified.
This hearing examined sections 201, 202, and 203 of the USA PATRIOT Act that relate to criminal wiretaps and section 213 that relates to when notice is provided for certain criminal search warrants. Sections 201, 202, and 223 expire on December 31, 2005. Section 213 does not sunset.
A. The Wiretap Provisions Set To Expire
1. Criminal Wiretap Authority Before the USA PATRIOT Act
`Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510-2522 (1994 & Supp. II 1996), requires the government, unless otherwise permitted, to obtain an order of a court before conducting electronic surveillance. The government is permitted to seek such orders only in connection with the investigation of the criminal offenses enumerated in section 2516 of title 18.' 17
[Footnote]
[Footnote 17: October 17, 2000, Memorandum for the Counsel, Office of Intelligence Policy and Review, U.S. DOJ.]
For Federal investigations, section 2516 distinguishes between wire (i.e., telephone) and oral (i.e., face-to-face conversation) communications, and electronic communications (i.e., conversation using a computer). The USA PATRIOT Act did not change these distinctions.
2. Wiretap Authority as amended by the USA PATRIOT Act
The USA PATRIOT Act added to the wiretap predicates under sections 201 and 202, and added safeguards under section 223 designed to prohibit the unauthorized disclosure of information obtained under the Government's updated surveillance authority.
Sec. 201. Terrorism as a predicate act for authorization of wiretaps. This section added new `wiretap predicates' under section 2516 of title 18 of the Federal criminal code that relate to crimes of terrorism. Section 201 provides the courts discretion to grant a wiretap for the interception of wire, oral, or electronic communications in the investigation of: (1) possible crimes relating to chemical weapons under 18 U.S.C. Sec. 229 and (2) possible crimes relating to terrorism under 18 U.S.C. 2332, 2332a, 2332b, 2332d, 2339A, or 2339B. While some crimes involving terrorism were already wiretap predicates, others were not. The USA PATRIOT Act closed the gap with respect to the use of this key investigative tool that significantly enhances law enforcement ability to prevent a terrorist attack and prosecute crimes connected with it. Such authority already existed for a number of other less serious crimes, such as trafficking automobile parts. Prior to the enactment of the USA PATRIOT Act, law enforcement could already conduct wiretaps on electronic communications under section 2516(3) for these felonies. The USA PATRIOT Act changed the law to now permit wiretaps on wire and oral communications as well.
Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse. This section adds a new `wiretap predicate' under section 2516 of title 18 of the Federal criminal code for serious computer hacking offenses, including cyberterrorism. Specifically, the wiretap predicate is for crimes under section 1030 of title 18 when the violation is a felony that relates to computer fraud and abuse. Prior to the USA PATRIOT Act, law enforcement could already conduct wiretaps on electronic communications under section 2516(3) for such felonies. The USA PATRIOT Act changed the law to now also permit wiretaps on wire and oral communications.
3. Wiretap Authority that Remained Unchanged by the USA PATRIOT Act
Sections 201 and 202 of the USA PATRIOT Act in no way change the strict limitations on how wiretaps may be used. Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968 18
[Footnote] that outlines what is and is not permissible with regard to wiretapping and electronic eavesdropping. 19
[Footnote] Title III restrictions go beyond Fourth Amendment constitutional protections and include a statutory suppression rule to exclude evidence that was collected in violation of Title III. 20
[Footnote] Except under limited circumstances, it is unlawful to intercept oral, wire, and electronic communications. 21
[Footnote] Accordingly, under the Act, Federal and state law enforcement may only use wiretaps under strict limitations. 22
[Footnote] Congress created these procedures to allow limited law enforcement access to private communications and communication records for investigations consistent with Fourth Amendment rights. Title 18 U.S.C. Sec. 2518 sets strict procedures for the use of a wiretap. Section 2518(1) requires the application to be made under written oath or affirmation to a judge of competent jurisdiction. Section 2518(1)(b) requires that the application set forth, among other things, `a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued. . . .' These facts should include, among other things, the `details as to the particular offense that has been, is being, or is about to be committed' and `the identity of the person, if known, committing the offense and whose communications are to be intercepted.' 23
[Footnote] Section 2518(3) also includes requirements that for the judge to issue a wiretap order the judge must believe (1) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of [title 18]; (2) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; and (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. 24
[Footnote] To further protect privacy, law enforcement is required `to minimize the interception of communications not otherwise subject to interception [that is, noncriminal conversations] under this chapter, and must terminate upon attainment of the authorized objective.' 25
[Footnote]
[Footnote 18: Omnibus Crime Control and Safe Streets Act, 87 Stat. 197 (1968)(codified as amended at 18 U.S.C. Sec. 2510-2520 (1970).]
[Footnote 19: Charles Doyle & Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, at 6 (2001).]
[Footnote 20: 87 Stat. 197, 18 U.S.C. Sec. 2510-2520 (1970 ed.).]
[Footnote 21: 18 U.S.C. Sec. 2511.]
[Footnote 22: 18 U.S.C. Sec. 2518.]
[Footnote 23: 18 U.S.C. Sec. 2518(1)(b).]
[Footnote 24: 18 U.S.C. Sec. 2518 (emphasis added).]
[Footnote 25: 18 U.S.C. Sec. 2518(5).]
Sec. 223. Civil Liability for Certain Unauthorized Disclosures. This section is similar to section 161 of H.R. 2975 that passed the House Judiciary Committee unanimously. Section 223 includes safeguards designed to prevent the unauthorized disclosure of information obtained under the Government's updated surveillance authority, by amending the criminal code to provide for administrative discipline of Federal officers or employees, as well as by allowing for civil actions to be brought against the United States for damages by any person aggrieved by such disclosures.
B. Delayed Notice
1. Pre-existing Authority for Delayed Notice
Contrary to reports, the USA PATRIOT Act did not create delayed notice search warrants. Delayed notice search warrants have been used for decades prior to enactment of the USA PATRIOT Act. In 1979, the U.S. Supreme Court expressly held in Dalia v. United States that the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant. 26
[Footnote] The Department of Justice states that three Federal Courts of Appeals had considered the constitutionality of delayed-notice search warrants since 1979 and upheld their constitutionality. 27
[Footnote]
[Footnote 26: See Dalia v. United States, 441 U.S. 238 (1979); see also Katz v. United States, 389 U.S. 347 (1967).]
[Footnote 27: April 4, 2005 U.S. Department of Justice letter to Senator Spector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000).]
2. What Delayed Notice Means
A delayed notice search warrant simply means that a court has expressly authorized investigators to delay notifying a suspect that a search warrant has been executed (i.e., a court-ordered search has occurred). The search warrant is the same, regardless of when the suspect receives notice. Thus, before a search warrant is issued, whether notice is delayed or not, a Federal judge must find that there is probable cause to believe the property to be searched or seized constitutes evidence of a criminal offense.
3. Section 213 Creates a Uniform Nationwide Standard for a Court To Authorize Delayed Notice
Congress included section 213 in the USA PATRIOT Act to create a uniform nationwide standard for the issuance of these warrants. Under section 213 there are limited circumstances when a court may delay notice. These circumstances are the same predicate circumstances permitted in an application for delaying notice in a search warrant for stored communications under section 2705(a)(2) of title 18, which predated the USA PATRIOT Act. For a court to permit a delay in the notice of a search of a suspect's property, the investigator or prosecutor must show that there is reasonable cause to believe that if the suspect is notified at the same time as the search one of the following situations may occur:
4. Notification Required Within a Reasonable Period of Time
The subject of the search must be notified within a reasonable period of time as determined by the court. Congress retained discretion for the courts to review the facts and determine what a reasonable period time is to delay the notice, as that is necessarily dependent upon the facts of each case. According to the Department of Justice, the shortest period of time for which the Government has requested delayed-notice for a search warrant is 7 days and the longest is 180 days. This figure is from a survey of the 94 U.S. Attorneys' Offices for a period between April 1, 2003, and January 31, 2005.
In an April 4, 2005, letter to Senator Specter, the Department of Justice provided statistics on the number of search warrants granted and the number of those for which delayed notice was sought and granted:
7. Tuesday, May 5, 2005--Oversight Hearing on Section 212 of the USA PATRIOT Act That Allows Emergency Disclosure of Electronic Communications To Protect Life and Limb
On Thursday, May 5, 2005, the Subcommittee held a hearing on section 212 of the USA 1PATRIOT Act. Section 212 of the USA PATRIOT Act allows computer-service providers to disclose electronic communications in life-threatening emergencies to law enforcement and is scheduled to expire on December 31, 2005.
Four witnesses--the Honorable William Moschella, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice; Willie Hulon, Assistant Director of the Counterterrorism Division, Federal Bureau of Investigation; Professor Orrin Kerr, Professor of Law at the George Washington University Law School; and James X. Dempsey, Executive Director of the Center for Democracy and Technology as the witness for the Minority--testified.
This hearing examined section 212 of the USA PATRIOT Act that allows computer-service providers to disclose information under emergencies that threaten life or limb. To understand the effect of section 212, following is an explanation of the prohibitions for disclosing stored electronic communications that existed before and exist after enactment of the USA PATRIOT Act. The 1986 Electronic Communications Privacy Act (ECPA) to authorize Government access to e-mail and other electronic communications `in storage.' Section 2701(a) of that chapter makes it a Federal offense to unlawfully access stored communications. Subsection (c) of 18 U.S.C. Sec. 2701 provides exceptions to the prohibitions in (a). Those exceptions include conduct authorized by the person or entity providing a wire or electronic communications service; conduct authorized by a user of that service with respect to a communication of or intended for that user; and exceptions described in sections 2702, 2703, 2704, and 2518 of title 18.
Subsection 2702(a) restricts voluntary disclosure of customer communications or records, unless the disclosure falls under one of the specified exceptions in subsections 2702(b) or 2702(c). Subsection 2702(b) provides exceptions for disclosure of the contents of a communication. Subsection 2702(c) provides exceptions for the disclosure of customer records. Under section 2702(c) a provider covered by subsection 2702(a) may divulge a record or other information pertaining to a subscriber to or customer of such service that does not include the contents of communications covered by subsections 2701(a)(1) or (a)(2).
Section 2703 provides the standards for Government access to electronic communications in storage. Section 2703(a) requires a search warrant to compel service providers to disclose unopened e-mails.
Sec. 212. Emergency Disclosure of Electronic Communications to Protect Life and Limb. Section 212 of the USA PATRIOT Act amended sections 2702 and 2703 of title 18. Prior to enactment of the USA PATRIOT Act, there were two basic problems with the disclosure rules for stored electronic communications. First, the law contained no provision allowing electronic communications service providers to voluntarily disclose communications when necessary to protect life and limb. Thus, `for example, an Internet service provider (`ISP') independently learned that one of its customers was part of a conspiracy to commit an imminent terrorist attack, prompt disclosure of the account information to law enforcement could save lives. Since providing this information did not fall within one of the statutory exceptions, however, an ISP making such a disclosure could be sued civilly.' 28
[Footnote]
[Footnote 28: Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001, Computer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of Justice.]
Second, while the law allowed communications service providers to protect their rights and property by disclosing stored communications that contained content, the law did not allow them to disclose communications that contained `non-content' records for such protection. Allowing providers to disclose content, but not non-content communications, to protect their rights and property had, according to the Department of Justice, substantially hindered providers' ability to protect themselves from cyber-terrorists and criminals.
The USA PATRIOT Act addresses both issues. To resolve the first problem addressing life and limb emergencies, section 212 amends subsection 2702(b) to authorize communications service providers to voluntarily disclose the stored `content' and `non-content' communications of their customers or subscribers if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay. This language was later amended in 2002 under the `Cyber Security Enhancement Act,' which was introduced by Mr. Lamar Smith, then Chairman of the Subcommittee on Crime, Terrorism, and Homeland Security. 29
[Footnote]
[Footnote 29: The Cyber Security Enhancement Act was incorporated into the Homeland Security Act of 2002.]
The Cyber Security Enhancement Act contains a section that made a conforming amendment to the USA PATRIOT Act to allow communications services providers to disclose communications to government entities in emergency situations where the provider in good faith believes that there is a danger of death or physical injury. For customer communications, the USA PATRIOT Act creates an exception that allows emergency disclosures to `law enforcement,' when the provider reasonably believes there was immediate danger. For customer records, however, the USA PATRIOT Act creates a broader exception allowing disclosure of such records to `a governmental entity.' This section changes the emergency exception for disclosing customer communications to include other Government agencies, such as emergency response personnel, health officials, and the Department of Defense. Thus, the provider could contact, for instance, the Centers for Disease Control as well as law enforcement. It should be noted that section 212 does not impose an affirmative obligation to review customer communications in search of such imminent dangers.
As to the second problem regarding property rights of the communications services provider, section 212 amends the law to allow communications services providers to disclose non-content information (such as the subscriber's login records). `It accomplishes this change by two related sets of amendments. First, amendments to sections 2702 and 2703 of title 18 simplify the treatment of voluntary disclosures by providers by moving all such provisions to 2702. Thus, section 2702 now regulates all permissive disclosures (of content and non-content records alike), while section 2703 covers only compulsory disclosures by providers. Second, an amendment to new subsection 2702(c)(3) clarifies that service providers do have the statutory authority to disclose non-content records to protect their rights and property. All of these changes will sunset December 31, 2005.' 30
[Footnote]
[Footnote 30: Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001, Computer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of Justice.]
8. Tuesday, May 10, 2005, Oversight Hearing on the Prohibition of Material Support to Terrorists and Foreign Terrorist Organizations and on the DOJ Inspector General's Report on Civil Liberty Violations Under the USA PATRIOT Act
On Tuesday, May 10, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee on the Judiciary held a hearing on the USA PATRIOT Act. This hearing examined the prohibition of material support to terrorists and foreign terrorist organizations and the requirement of the Department of Justice Inspector General (IG) to report every six months on any violations of civil liberties. Four witnesses--the Honorable Glenn Fine, Inspector General of the Department of Justice; the Honorable Gregory G. Katsas, Deputy Assistant Attorney General, Civil Division of the Department of Justice; Mr. Barry Sabin, Chief of the Counterterrorism Section of the Criminal Division of the Department of Justice; and Ahilan Arulanantham, Staff Attorney for the American Civil Liberties Union of Southern California--testified.
The hearing focused on section 805(a)(2)(B) of the USA PATRIOT Act as amended by section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, which covers Material Support, and section 1001 of the USA PATRIOT Act, which requires the IG to report to the Congress ever six months on whether the IG has found any civil liberty violations.
A. Section 1001 of the USA PATRIOT Act
Section 1001 requires the Inspector General of the Department of Justice to submit a semiannual report. This section does not sunset, but does help the Committee understand the existence and extent of civil liberty abuses by the Department of Justice. Specifically, section 1001 directs the IG to investigate claims of civil rights or civil liberties violations allegedly committed by the Department of Justice. Since enactment of the USA PATRIOT Act, the IG has issued six semi-annual reports. In the sixth (and most recent) report, which was issued in March 2005, the IG had yet to find any violations under the USA PATRIOT Act.
1. Background
Section 1001 of the USA PATRIOT Act is based upon a proposal that emerged during consideration of anti-terrorism legislation by the House Judiciary Committee. The Committee report explains, `In the wake of several significant incidents of security lapses and breach of regulations, there has arisen the need for independent oversight of the Federal Bureau of Investigation. Oversight of the Federal Bureau of Investigation is currently under the jurisdiction of the Department of Justice Office of Professional Responsibility. This section directs the Inspector General of the Department of Justice to appoint a Deputy Inspector General for Civil Rights, Civil Liberties. This section also directs the Deputy Inspector to review all information alleging abuses of civil rights, civil liberties, and racial and ethnic profiling by employees of the Department of Justice, which could include allegations of inappropriate profiling at the border,' H.Rept. 107-236, at 78. (2001).
2. The Department of Justice Office of Inspector General
The Office of the Inspector General (OIG) in the Department of Justice is an independent entity that reports to both the Attorney General and Congress. The OIG's mission is to investigate allegations of waste, fraud, and abuse in DOJ programs and personnel and to promote economy and efficiency in DOJ operations. The OIG has jurisdiction to review programs and personnel in all DOJ components. Since its creation in 1989, the OIG has had the authority to conduct audits and inspections in all DOJ components and investigations of employee misconduct in all components except the FBI and the Drug Enforcement Agency (DEA). On July 11, 2001, the Attorney General expanded the OIG's jurisdiction to include criminal and administrative investigations of FBI and DEA employees.
3. Section 1001
Section 1001 of the USA PATRIOT Act provides the following:
The Inspector General of the Department of Justice shall designate one official who shall:
(1) review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice;
(2) make public through the Internet, radio, television, and newspaper advertisements information on the responsibilities and functions of, and how to contact, the official; and
(3) submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report on the implementation of this subsection and detailing any abuses described in paragraph (1), including a description of the use of funds appropriations used to carry out this subsection.
To undertake the responsibilities designated to the OIG by section 1001, the OIG established the Special Operations Branch in its Investigations Division to help manage the OIG's investigative responsibilities outlined in the USA PATRIOT Act. The Special Operations Branch receives civil rights and civil liberties complaints via mail, e-mail, telephone, and facsimile. Once a complaint is received, it is reviewed by the Investigative Specialist and ASAC responsible for USA PATRIOT Act complaints. After review, the complaint is entered into an OIG database and a decision is made concerning its disposition. The more serious civil rights and civil liberties allegations that relate to actions of a DOJ employee or contractor are assigned to an OIG Investigations Division field office for investigation. The OIG has approximately 120 series 1811 special agents who conduct investigations of criminal violations and administrative misconduct. Because of its limited resources, the OIG refers some complaints involving DOJ employees to internal affairs offices in DOJ components, such as the FBI and the Bureau of Prisons (BOP) for appropriate handling. Certain referrals require the component to report the results of their investigation to the OIG. In most cases, the OIG notifies the complainant of the referral. Complaints outside the OIG's jurisdiction that identify a specific issue for investigation are forwarded to the appropriate investigative entity.
In addition, the OIG has referred complainants to a variety of police department internal affairs offices. Since passage of the USA PATRIOT Act, the OIG also has been in close communication with the DOJ Civil Rights Division's National Origin Working Group (NOWG) to Combat the (Post-9/11 Discriminatory Backlash). The NOWG regularly forwards complaints alleging civil rights and civil liberties abuses to the OIG for review. Many of the complaints forwarded by the NOWG are the result of media database searches.
When an allegation received from any source involves a potential violation of Federal civil rights statutes by a DOJ employee, the complaint is discussed with the DOJ Civil Rights Division for prosecutorial review. In some cases, the Civil Rights Division accepts the case and requests additional investigation by either the OIG or FBI. In other cases, the Civil Rights Division declines prosecution. 31
[Footnote]
[Footnote 31: Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act (as required by Section 1001(3) of Public Law 107-56) (Mar. 2005), Office of the Inspector General, U.S. Dept. of Justice, available at http://www.usdoj.gov/oig/special/0503/index.htm.]
4. Complaints Processed This Reporting Period
From June 22, 2004, through December 31, 2004, the period covered by the sixth report, the OIG processed 1,943 complaints that were sent primarily to the OIG's section 1001 e-mail or postal address. Of these complaints, 1,748 did not warrant further investigation or did not fall within the OIG's jurisdiction. Approximately three-quarters of the 1,748 complaints made allegations that did not warrant an investigation. For example, some of the complaints alleged that Government agents were broadcasting signals that interfere with a person's thoughts or dreams or that prison officials had laced the prison food with hallucinogenic drugs. The remaining one-quarter of the 1,748 complaints in this category involved allegations against agencies or entities outside of the DOJ, including other Federal agencies, local governments, or private businesses. The OIG referred those complaints to the appropriate entity or advised complainants of the entity with jurisdiction over their allegations.
Consequently, 195 complaints involved DOJ employees or components and made allegations that required further review. Of those complaints, 170 raised management issues rather than alleged `civil rights' or `civil liberties' abuses and were referred to DOJ components for handling. For example, inmates complained about the general conditions at Federal prisons, such as the poor quality of the food or the lack of hygiene products. Twelve of the 195 complaints did not provide sufficient detail to make a determination whether an abuse was alleged. The OIG requested further information but did not receive responses from any of these 12 complainants. Finally, the OIG requested that the BOP investigate one of the complaints and report to the OIG on the investigation's findings. That complaint involved an inmate who complained that he was sexually harassed by a correctional officer. BOP's investigation of the matter is ongoing.
Therefore, after analyzing these 195 complaints, the OIG identified 12 matters that the OIG believed warranted opening a section 1001 investigation or conducting a closer review to determine if section 1001-related abuse occurred. Of the 12 matters, the OIG retained one for investigation because the complainant made allegations of a potentially criminal nature. The OIG closed one because the allegations already had been addressed in a previous OIG investigation. The OIG referred the remaining ten matters, which appeared to raise largely administrative issues, to Department components for further investigation or review. For six of the ten matters, the OIG requested that the components report their findings to the IG.
None of the complaints the OIG processed during this reporting period alleged misconduct by DOJ employees relating to the use of a provision in the USA PATRIOT Act. 32
[Footnote] In addition, the IG has not substantiated claims of alleged misconduct resulting from the use of a provision of the USA PATRIOT Act in any prior report, although one such allegation is still under review. 33
[Footnote]
[Footnote 32: Id.]
[Footnote 33: An OIG investigation relating to Brandon Mayfield is still ongoing as of the date of this hearing.]
B. Prohibition on Material Support to Terrorists
1. The Antiterrorism and Effective Death Penalty Act of 1996
The USA PATRIOT Act did not create the prohibition on material support to terrorists and foreign terrorist organizations, but did amend that prohibition. It was the `Antiterrorism and Effective Death Penalty Act of 1996,' that created prohibitions to sever material support from international terrorists. The 1996 Act was in response to the Oklahoma City and first World Trade Center terrorist attacks. Subtitle A of Title III of the 1996 Act: (1) established the procedure under which a foreign organization may be designated as a terrorist organization; (2) proscribes providing such an organization with `material support;' and (3) established a system of civil penalties for banks and other financial institutions that fail to freeze and report the assets of such organizations. 34
[Footnote]
[Footnote 34: Antiterrorism and Effective Death Penalty Act of 1996: A Summary, Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, June 1996).]
Section 302 of the 1996 Act `established the procedure for designating as foreign terrorist organizations those foreign organizations that engage in terrorist activities that threaten the national defense, foreign relations, or economic interests of the United States or the security of U.S. nationals, 8 U.S.C. 1189. The designation by the Secretary of State lasts for up to two years with the possibility of a two-year renewal and may be withdrawn by the Secretary or by law. The designation is subject to judicial review on behalf of the designated organization if it is arbitrary, contrary to law, or in excess of authority. The Government may provide any supporting classified information to the court in secret. The designation may not be contested by a donor subsequently prosecuted for support nor by an alien excluded from the United States for association. Assets of a designated organization held by a financial institution may be frozen by order of the Secretary of the Treasury.' 35
[Footnote]
[Footnote 35: Id.]
Section 303 of the 1996 Act `outlaws providing support to a foreign terrorist organization, 18 U.S.C. 2339B. In addition to money and the instrumentalities of war, prohibited support extends to food, medical supplies, and any other physical asset except medicine itself and religious articles, 18 U.S.C. 2339A; 142 Cong.Rec. H3334 (daily ed. April 5, 1996). The fact that a particular contribution is made and used for humanitarian purposes is no defense since the gist of the offense is contributing to a tainted organization regardless of the purpose or use of the contribution. Violations are punishable by imprisonment for not more than 10 years and/or a fine of not more than $250,000. Financial institutions that fail to report or comply with a freeze order are subject to civil penalties of up to the greater of twice the amount involved or $50,000. The proscriptions apply both in the United States and to Americans and American institutions overseas.' 36
[Footnote]
[Footnote 36: Id.]
2. The 1998 Challenge to Material Support Prohibition
Led by the Humanitarian Law Project, six organizations and two individuals challenged the constitutionality of the law in 1998, contending that it violated the First Amendment.
They argued, among other things, that the law infringed on their free-association rights, granted too much discretion to the secretary of state and prohibited their First Amendment right to seek and donate funds.
A Federal district court rejected most of the First Amendment claims, but ruled the definition of the term `material support' was vague enough to prevent the government from enforcing the law.
On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed in Humanitarian Law Project v. Reno. Just as the lower court had, the appeals court cast aside most of the First Amendment arguments.
The court rejected the free-association claim, finding that the statute does not prohibit membership in a group or support for the political goals of a group. `What [the law] prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions,' the court wrote in its March 3 opinion.
The plaintiffs contended that the law could be interpreted to prohibit the giving of material support to the so-called terrorist groups' nonviolent humanitarian and political activities.
However, the 9th Circuit determined that the First Amendment did not protect the right to give funds to terrorist groups. These `terrorist groups do not maintain open books,' the court wrote. `Therefore, when someone makes a donation to them, there is no way to tell how the donation is used.'
The appeals court distinguished between giving material support to a group and advocating the beliefs and ideas of a group. `Advocacy is far different from making donations of material support,' the court wrote.
The appeals court also dismissed the plaintiffs' argument that the statute had empowered the secretary of state with `unfettered discretion' to determine whether a group is a terrorist organization.
The 9th Circuit pointed out that the secretary of state can only designate a group as a terrorist group if he or she has `reasonable grounds to believe that an organization has engaged in terrorist acts.'
However, the appeals court agreed with the plaintiffs and the lower court that some of the law's language was too vague.
The law defined `material support' as:
Currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets, except medicine or religion.
The court focused on the terms `training' and `personnel,' finding that these terms `blur[red] the line between protected expression and unprotected conduct.'
`Someone who advocates the cause of * * * [a terrorist organization] * * * could be seen as supplying them with personnel,' the court wrote.
The appeals court also had trouble with the word `training.' `For example, a plaintiff who wishes to instruct members of a designated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expression falls within the scope of the term `training.' For these reasons, the court ruled that the lower court did not `abuse its discretion' in issuing a preliminary injunction. 37
[Footnote]
[Footnote 37: Federal appeals panel finds anti-terrorism law unconstitutionally vague, David Hudson, First Amendment Center research attorney, (April 8, 2000). [emphasis added].]
3. USA PATRIOT Act Amends the Material Support Provision
Section 805(a)(2)(B) of the USA PATRIOT Act added the phrase `expert advice or assistance' to the types of material support to terrorists that is banned by the criminal law. Title 18 U.S.C. Sec. 2339A prohibited providing material support or resources to terrorists prior to enactment of the USA PATRIOT Act. Prohibition on expert advice or assistance also applies to 18 U.S.C. 2339B's prohibition of material support to FTOs. The existing definition of `material support or resources' was not broad enough to encompass expert services and assistance--for example, advice provided by a person with expertise in aviation matters to facilitate an aircraft hijacking, or advice provided by an accountant to facilitate the concealment of funds used to support terrorist activities. This section accordingly amended 18 U.S.C. 2339A to include expert services and assistance, making the offense applicable to experts who provide services or assistance knowing or intending that the services or assistance is to be used in preparing for or carrying out terrorism crimes. This also applies to 18 U.S.C. 2339B.
4. Challenges to the USA PATRIOT Act Prohibition of Material Support to Terrorists
a. December 3, 2003 9th Circuit Decision
LOS ANGELES--Civil rights lawyers filed a free-speech challenge . . . to a section of the USA Patriot Act that makes it illegal to provide `expert advice and assistance' to groups with alleged links to terrorists.
The ban is unconstitutionally vague and should be struck down, the New York-based Center for Constitutional Right argued in a motion filed in Federal court.
The motion was included in the center's current lawsuit, Humanitarian Law Project v. Ashcroft, which challenges a 1996 law that makes it a crime to provide material support to any group designated a foreign terrorist organization. Federal courts have already struck down portions of that law that barred providing personnel or training to terrorist groups, saying the provisions were unconstitutionally vague.
The Patriot Act, passed after the Sept. 11, 2001, terrorist attacks, amended the definition of material support to include `expert advice and assistance.'
The plaintiffs say they want to provide support for lawful, nonviolent activities by two groups designated as foreign terrorist organizations: the Kurdistan Workers' Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka.
One of the plaintiffs, Dr. Nagalingam Jeyalangim, would like to work as a doctor in his war-torn homeland of Sri Lanka. However, because some hospitals are controlled by rebel forces there, he fears he could be prosecuted for `providing material support' to a terrorist group, according to the filing.
* * * * * * * 38
[Footnote]
[Footnote 38: Patriot Act dealt blow by federal judge, The Associated Press, January 26, 2004.]
b. The 9th U.S. Circuit Court of Appeals Overturns Circuit's Ruling That the 1996 Terror Financing Law Was Unconstitutional
A Federal appeals court reinstated indictments against seven Los Angeles residents accused of raising money for a terror organization with links to ousted Iraqi ruler Saddam Hussein. In a victory for the Bush administration's war on terror, the 9th U.S. Circuit Court of Appeals yesterday reversed a Los Angeles Federal judge who declared the 1996 terror financing law unconstitutional.
The law makes it illegal to funnel money--`material support'--to organizations the State Department says are linked to terrorism, about 30 groups in all.
Before the Sept. 11, 2001, attacks, the government rarely used the terror law. Subsequently the administration has used the law to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle to Portland, Ore.
* * * * * * *
The case stems from a 2001 indictment against the seven defendants for allegedly providing several hundred thousand dollars to the Mujahedin-e Khalq, which the appeals court said `participated in various terrorist activities against the Iranian regime' and `carried out terrorist activities with the support of Saddam Hussein's regime.'
U.S. District Judge Robert Takasugi had invalidated the law, saying it did not provide the groups a proper forum to contest their terror designations.
But a three-judge panel of the San Francisco-based Federal appeals court overruled that decision and went a step further, saying individuals accused of supporting the listed groups cannot challenge whether the groups should be listed.
The government, the court said, must prove the `fact that a particular organization was designated at the time the material support was given, not whether the government made a correct designation.'
The 9th Circuit decision mirrors a ruling this year by the 4th U.S. Circuit Court of Appeals in Richmond, Va., upholding the conviction of a man who funneled money to the militant Hezbollah organization while insisting he had a right to challenge that group's listing.
`The Justice Department is pleased that yet another court has upheld the constitutionality of the material-support statute, a key weapon in our arsenal of legal remedies in the war on terror,' spokesman John Nowacki said. `Stopping the flow of money and other resources to terrorists is critical to our success, and the department will continue to pursue those who provide material support for terrorist objectives.'
The seven Los Angeles defendants said it violated their First Amendment rights to be prohibited from contributing money to groups they say are not terror organizations. They said they should be afforded the right to prove that the group in question should not be on the State Department's list.
Writing for the majority, Judge Andrew J. Kleinfeld said the First Amendment did not protect unlimited speech, and even allowed limits on campaign contributions.
`It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated a terrorist organization,' Kleinfeld wrote.
* * * * * * *
According to the indictment, the Los Angeles defendants solicited donations at the Los Angeles International Airport and wired money to a Mujahedin-e Khalq bank account in Turkey. The group had tried unsuccessfully to get removed from the terror list.
No court date has been set for the seven. 39
[Footnote]
[Footnote 39: 9th Circuit reinstates terror indictments, the Associated Press, December 21, 2004.]
5. Intelligence Reform and Terrorism Prevention Act of 2004
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004 adds a new crime of material support for terrorism for knowingly receiving military training from a foreign terrorist organization. The section requires that any person charged under this section must have knowledge that the organization is a terrorist organization. It also defines the term `military-type training.' Section 6603 also expands the crime of material support to terrorists to include any act of international or domestic terrorism.
Section 6603(c) specifies that any person charged under this section must have knowledge that the organization is a terrorist organization. It also more clearly defines the term `material support.' The Intelligence Reform and Terrorism Prevention Act of 2004 attempted to address the court cases finding the terms `training' and `personnel' under the prohibition unconstitutionally vague, 40
[Footnote] and the term `expert advice or assistance' in material support statute unconstitutionally vague. 41
[Footnote]
[Footnote 40: See Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th Cir. 2003).]
[Footnote 41: Humanitarian Law Project v. Ashcroft, 2004 WL 112760 (C.D. Cal. Jan. 22, 2004).]
The Intelligence Reform and Terrorism Prevention Act provides more detailed definitions of the terms `training,' and `expert advice or assistance' under section 6603(b); and `personnel' under section 6603(f) by creating new section 3229B(a)(1)(h) of title 18 that limits the term `personnel.'
Section 6603(f) contains an exception that `no person may be prosecuted under this section in connection with the term `personnel,' `training,' or `expert advice or assistance' if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General.'
Section 6603(g) also provides that section 6603 sunsets on December 31, 2006.
6. 9th Circuit Lifts 2002 Injunction Protecting Donors to Terrorist Organizations
A Federal appeals court yesterday lifted an injunction that had barred the government from prosecuting a Los Angeles group if it aids organizations labeled as supporting terrorism.
The decision by the 9th U.S. Circuit Court of Appeals came days after President Bush signed legislation overhauling U.S. intelligence gathering and terror-enforcement rules. The San Francisco-based court said yesterday's decision in Humanitarian Law Project v. Dept. of Justice was based partly on the Intelligence Reform and Terrorism Prevention Act of 2004, which Bush signed into law on Dec. 17.
The appeals court, however, did not comment on whether the Humanitarian Law Project could ever be prosecuted if it provided advice to the Kurdistan Workers' Party or the Tamil Tigers Eelam in Sri Lanka.
The 11-judge panel of the 9th Circuit sent the case back to the lower courts, where
the Humanitarian Law Project is expected to challenge the new provisions.
`The end goal is to get another injunction,' said David Cole, a Georgetown University School of Law scholar who won the 2002 injunction on behalf of the Humanitarian Law Project.
Cole said the group would abide by the court's order.
The State Department lists the Sri Lanka and Turkey groups as terror organizations. That makes it illegal for those in the United States to provide financial assistance under a 1996 law created in the aftermath of the attack on the Oklahoma City Federal building.
The Humanitarian Law Project was not seeking to give money. Rather, it wanted to donate personnel and training time to teach the groups about human rights and peacemaking, according to court documents.
The humanitarian group had provided human rights support to the Kurdistan party for years before the party was declared a terror organization by the United States. The humanitarian group challenged the 1996 law in Los Angeles Federal court a year later, Cole said.
The group sought the injunction because it feared its members might be prosecuted and imprisoned for up to 15 years.
Before the Sept. 11, 2001, attacks, the government rarely used the terror law. The administration subsequently has employed it to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle and Portland, Ore.
In 2003, the 9th Circuit said the Humanitarian Law Project could donate human rights and peacemaking services because the law did not specifically outlaw such assistance. . . .
The legislation, which creates a national intelligence center and the position of national intelligence director, makes it illegal to assist the roughly 30 organizations the State Department says are linked to terrorism.
The new law virtually outlaws any form of assistance, financial or not.
* * * * * * *
Yesterday's decision comes a day after a different panel of the 9th Circuit reinstated the indictments against seven Los Angeles residents accused of raising money for a terror organization with links to ousted Iraqi ruler Saddam Hussein.
The group claimed they had a right to challenge whether the terror group they were funding--Mujahedin-e Khalq--should be on the terror list. The appeals court said the government must prove the `fact that a particular organization was designated at the time the material support was given, not whether the government made a correct designation.' 42
[Footnote]
[Footnote 42: 9th Circuit lifts injunction protecting donors, the Associated Press, December 22, 2004.]
9. May 26, 2005, Oversight Hearing on Material Witness Provisions of the Criminal Code and the Sections 505 and 804 of the USA PATRIOT Act
On Thursday, May 26, 2005, the Subcommittee on Crime, Terrorism, and Homeland Security for the Committee on the Judiciary held a hearing on material witness provisions of the criminal code and sections 505 (related to National Security Letters) and 804 (related to jurisdiction over crimes committed at U.S. facilities abroad) of the USA PATRIOT Act. The Subcommittee heard testimony from four witnesses--Chuck Rosenberg, Chief of Staff to the Deputy Attorney General of the Department of Justice; Matthew Berry, Counselor to the Assistant Attorney General of the Department of Justice; and two witnesses for the minority: Gregory Nojeim, Acting Director of the Washington Legislative Office of the American Civil Liberties Union; and Shayana Kadidal, Staff Attorney, Center for Constitutional Rights.
A. National Security Letters
1. What Is a National Security Letter?
A National Security Letter (NSL) is an administrative subpoena that can be used in international counterterrorism or foreign counterintelligence investigations. An administrative subpoena is an investigative tool that allows the FBI to request (compliance varies, see examples) document production or testimony without prior approval from a grand jury, court, or other judicial entity. Congress grants the administrative subpoena power of executive branch entities as well as the scope and exercise of these authorities.
2. Types of National Security Letters
A NSL can be used under the following circumstances and authorities:
3. When Can NSLs Be Issued?
In addition to the statutory authority set forth above, when an NSL can be issued or used is governed by the applicable Attorney General Guidelines for FBI National Security Investigations and Foreign Intelligence Collection. NSLs are used in international counterterrorism or foreign counterintelligence investigations. However, this authority is limited further: NSLs issued under 15 U.S.C. Sec. 1681v (credit reports) can only be issued in counterterrorism cases; credit reports cannot be obtained for a foreign counterintelligence investigation under this section.
NSLs cannot be used in criminal investigations unrelated to international terrorism or clandestine intelligence activities. Furthermore, both Executive Order 12333 and the FBI require that the FBI accomplish these investigations by the `least intrusive' means.
4. Recent Legislative Changes to NSL Authority
This is consistent with the Supreme Court's rulings on the issuance and purpose of administrative subpoenas. Previously the signature of a high-ranking official at FBI headquarters was required to issue an NSL and the process often took months. In many cases, counterintelligence and counterterrorism investigations suffered substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The Act streamlines the process for obtaining NSL authority by allowing the Director to designate an individual at Headquarters, not lower than Deputy Assistant Director, or to designate a Special Agent in Charge in a Bureau field office, to authorize an NSL.
[Footnote]
[Footnote 43: Report to Congress on the Use of Administrative Subpoena Authority by Executive Branch Agencies and Entities, Pursuant to Pub. L. No. 106-544, Section 7, n. 8, p. 7.]
[Footnote]
[Footnote 44: Report to Congress on the Use of Administrative Subpoena Authority by Executive Branch Agencies and Entities, Pursuant to Pub. L. No. 106-544, Section 7, p. 8.]