PATRIOT Act provisions pass on second try; go to Senate

February 16, 2011

By Susan Johnson
Copy Editor

The USA PATRIOT Act, first passed after the tragedy of Sept. 11, 2001, had a number of “sunset” provisions up for renewal. The complete name of the legislation is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

After an initial rejection Feb. 8, the provisions were voted on again by the U.S. House Monday evening, Feb. 14, and passed 275-144. The provisions were extended until Dec. 8. An agreement must be reached with the U.S. Senate before the Feb. 28 expiration date.

In a Wikipedia summary, this act “dramatically reduced restrictions on law enforcement agencies’ ability to search telephone, e-mail communications, medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities” to which the act applies.

The act, in its entirety, is composed of the following titles: 3.1—Title I: Enhancing Domestic Security Against Terrorism; 3.2—Title II: Surveillance procedures; 3.3—Title III: Anti-money laundering to prevent terrorism; 3.4—Title IV: Border security; 3.5—Title VI: Victims and families of victims of terrorism; 3.6—Title VIII: Terrorism criminal law; 3.7—Title IX: Improved Intelligence; 3.8—Title X: Miscellaneous.

The act was passed by wide margins in both houses of Congress, supported by both Republicans and Democrats, and signed into law by President George W. Bush Oct. 26, 2001.

Opponents have criticized the act’s authorization of indefinite detentions of immigrants; searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation (FBI) to search telephone, e-mail, and financial records without a court order; and the expanded access of law enforcement agencies to business records, including library and financial records. Since its passage, several legal challenges have been brought against it, and federal courts have ruled that a number of provisions are unconstitutional.

Of special concern now are three controversial provisions set to expire Feb. 28. Tuesday, Feb. 8, the provisions failed to get approval in the House in a vote of 277-148. As reported by Julian Sanchez of Cato@Liberty (www.cato-at-liberty.org): “The vote failed only because GOP leadership had sought to ram the bill through under a ‘suspension of the rules’—a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments—which required a two-thirds majority for passage.”

In the Feb. 14 vote, a procedure that required only a simple majority was used.

The following three provisions are now approved:

Lone Wolf—allowing non-citizens in the U.S. who are suspected of being involved in terrorist activities to be monitored under broad powers of the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or “foreign power.”

Sanchez explained in his article: “It was passed after FBI claimed the absence of ‘lone wolf’ authority stymied efforts to monitor the infamous ‘20th 9/11 Hijacker’—but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional—and constitutionally significant—distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations.”

The Lone Wolf provision has never been used.

Roving wiretaps—This authority “allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be ‘described’ rather than identified.”

This procedure makes possible the issuing of “John Doe” warrants that name neither a person nor a specific place or facility. Critics warn these warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates could support the reauthorization of this provision if it were modified to match the criminal authority and require specific individuals or facilities to be named.

Section 215—This section “expanded the authority of the FISA Court to compel the production of business records or any other ‘tangible thing,’” explained Sanchez. “While previously such orders were limited to narrow classes of businesses and records, and required a showing of ‘specific and articulable facts’ that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of ‘reasonable grounds’ to believe records are ‘relevant’ to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism.”

Comments from U.S. Rep. Don Manzullo

The Rock River Times sent the following questions to U.S. Rep. Don Manzullo (R-16), and his office responded by e-mail.

TRRT: Do you support or oppose the extension of the “sunset” provisions of the PATRIOT Act—namely, “Lone Wolf,” roving wiretaps, and Section 215 concerning FISA? What about the National Security Letters?

Manzullo’s office: Currently, Rep. Manzullo supports the short-term extension of the two non-permanent provisions of the PATRIOT Act (“roving wiretaps” and access to “tangible items”) and the one non-permanent provision of the Intelligence Reform and Terrorism Prevention Act (IRTPA)—“lone wolf” while Congress continues to work on a longer-term solution to these issues, reserving judgment on the final product until he has a chance to review it. The 10-month extension of the PATRIOT Act (H.R. 514) failed last week solely because the legislation was brought up under an expedited legislative procedure that requires two-thirds (or 290) votes for passage. H.R. 514 garnered 277 votes. It is scheduled to come up for a vote again later tonight (Feb. 14) under “regular order” that requires a simple majority to pass. The changes to National Security Letters were one of the 14 (out of 16) items that were made permanent as part of the PATRIOT Act reauthorization back in the 109th Congress, which Rep. Manzullo voted against in 2005.

TRRT: Is it possible that any of these provisions could be used in an abuse of authority against innocent U.S. citizens? What safeguards are there if constitutional protections do not apply?

Manzullo’s office: Every authority of the federal government has the possibility of abuse. But there are sufficient protections built in to help ensure that those events do not happen, everything from oversight by the Inspector General of various agencies to judicial review by the courts to congressional oversight by the committees of jurisdiction. In addition, the “lone wolf” provision can only be used against non-U.S. citizens.

TRRT: If Republicans are concerned about too much expansion of government, wouldn’t reauthorization of the PATRIOT Act further contribute to this problem?

Manzullo’s office: It could, but the federal government must be flexible enough to change to meet the security challenges of the future. Again, there are numerous built-in protections to help ensure that the government does not abuse its powers. And, if it does, then the authorities can be cut back (as we saw in 2007 and 2008, when the Inspector General of the Justice Department saw abuses and made recommendations for reform, which were adopted, when the Federal Bureau of Investigation (FBI) misused its National Security Letters authority). We can’t live in a 1950s world where people just had one rotary phone, communicated by mail or by passing handwritten coded notes to foreign agents at drop-sites in parks, and our enemies worked only for a foreign government. We are now standing against a philosophical/theological movement that does not respect national boundaries and motivates individuals over the Internet.

Comments from U.S. Rep. Bobby Schilling

In a neighboring district, U.S. Rep. Bobby Schilling (R-17) issued a press release listing his reasons for voting against extending these provisions. According to the release: “Schilling specifically took issue with key provisions he felt infringed on civil liberties. Schilling said while he believes a strong national defense is of utmost importance, we must also strive to protect the civil liberties afforded to all American citizens in the Constitution.

“Schilling said, ‘During my campaign I stated that we need increased national security but not without a thorough and complete look at the PATRIOT Act and its scope. I kept my promise to the people of the 17th District and voted “No” against a bill that was rushed to the floor with limited debate. I will continue to support a strong national defense that does not infringe upon the rights of Americans.’”

In a video posted on his website, Schilling said, “Tuesday, Feb. 8, I voted ‘No’ on a hastily put-together bill that would reauthorize some controversial provisions in the PATRIOT Act. I did so because we were made aware of the vote with little time to read and study the bill. Today, I voted to bring the PATRIOT Act to the floor under regular vote so it can be debated and studied.”

In the Senate, committee chairman Patrick Leahy (D-Vt.) had introduced a reauthorization that would extend and reform some of the provisions set to expire Feb. 28. But some observers, such as the ACLU and the American Library Association, say the reforms do not go far enough. The ACLU calls the legislation unconstitutional. Since the provisions of the Patriot Act passed the House, the Senate must now work on its own compromise version.

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