debate 24 anti-terrorist...

ANTI-TERRORIST LEGISLATIONTHREAT TO CIVIL LIBERTIES OR CONSTITUTIONAL SHIELD?

THREAT TO CIVIL LIBERTIES

ADVOCATE: David Cole, Professor of Law, Georgetown University LawCenter

SOURCE: Testimony during hearings on, “Continued Oversight of the USAPatriot Act,” U.S. Senate Committee on the Judiciary May 10, 2005

CONSTITUTIONAL SHIELD

ADVOCATE: Alberto R. Gonzales, U.S. Attorney GeneralSOURCE: Testimony during hearings on, “Oversight of the USA Patriot Act,”

U.S. House of Representatives Committee on the Judiciary April 6,2005

For most Americans, September 11, 2001, began well. It was sunny and 66ºF at8:00 A.M. in New York City. On the East Coast, people were arriving at work and

otherwise beginning their days. Around the rest of the country, most folks were get-ting up or enjoying that last hour or two of sleep. All was normal.

Then at 8:45 A.M. an airliner smashed into the north tower of the World TradeCenter. Within little more than an hour, a another jet liner crashed into the southtower, a third dove into the Pentagon, and a fourth went down in a field nearPittsburgh. All tolled, 19 terrorists, 33 crewmembers, 219 passengers, and more than3,000 people on the ground died that morning.

The impact on the Americans was profound. The attacks marked the “End ofIllusion,” as columnist Robert J. Samuelson entitled a Washington Post essay. In addi-tion to the physical damage, he wrote, “What was destroyed…[was] Americans’dreamlike feeling [of being] insulated from the rest of the world.”

The U.S. reaction was dramatic. President George W. Bush soon ordered U.S.forces into Afghanistan to attack al-Qaeda and the Taliban regime. Congress quicklyapproved military action, and polls found nearly 90% of Americans agreed. Theimpact of 9/11 on U.S. foreign policy also included the formulation of the BushDoctrine and the subsequent invasion of Iraq.

The political shock waves from 9/11 also rippled inward. Amid their shatteredsense of security, Americans sought safety and were willing, at least temporarily, tosurrender some of their civil liberties to get it. When asked less than a week after theattack, “Would you support new laws to strengthen security measures against terror-ism, even if that meant reducing privacy protections?” 78% said yes, 14% replied no,and 8% were unsure.

Americans soon got what they wanted. Bush proposed legislation to greatlyincrease the ability of government agencies to conduct wiretaps and other covert oper-ations and to ease the barriers to U.S. intelligence agencies conducting investigationswithin the country. In an anxiety-ridden atmosphere, the USA Patriot Act (“The

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John T. Rourke, You Decide! 2006 Copyright © 2006 by Pearson Education, Inc.

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Uniting and Strengthening America by Providing Appropriate ToolsRequired to Intercept and Obstruct Terrorism Act of 2001”) quicklypassed both houses of Congress by huge margins and was signed into law. Amongother things, it:

• Eases the authorization process for wiretaps, searches, and other covert activity.Standards for judicially authorized actions are lower; in limited circumstances ac-tion can be taken on authorization of the U.S. Attorney General.

• Permits surveillance of electronic communications, including e-mail and voice-mail and of communications records, such as Web sites visited.

• Eases barriers to domestic operations by intelligence agencies. This can now occurwhen foreign intelligence is a significant, no longer the only, concern.

• Permits “roving” surveillance of whatever communications device a subject is us-ing, rather than being restricted to a single device.

• Allows access to information such as library records, book store purchases, stu-dent records (of foreign students) and also many tangible item controlled byrental companies, such as automobiles previously rented by a suspect.

• Expands the use of searches conducted without an individual’s knowledge or a re-quirement that the government reveal what it seized during the search.

The following readings by advocates David Cole and Alberto Gonzales provide moredetail on the Patriot Act. But you may want to see it in its entirety at: http://www.fincen.gov/pa_main.html. Detailed knowledge will help you evaluate theworries of some that without the act the country stands virtually defenseless beforeterrorism and the voices of others who claim that under the act, CIA agents willsoon be bugging your home. Neither extreme is likely. So proceed with caution inyour evaluation.

POINTS TO PONDER➢ Read the following debates with almost two contradictory thoughts in mind.

One is that it is healthy for citizens in a democracy to be leery of any form ofcovert government intrusion. At the same time, though, bear in mind that mostof these methods are not new, only expanded, and the process for agencies to usethem has been made less restrictive, not eliminated. This is an issue of balance,not right or wrong.

➢ One of the oft-quoted remarks of Benjamin Franklin is, “They that can give upessential liberty to obtain a little temporary safety deserve neither liberty nor safe-ty.” Is this a bit of enduring wisdom from the “sage of Philadelphia,” or is it a shib-boleth from the man who also recommended the turkey become the national sym-bol? Would the maxim, “an ounce of prevention is worth a pound of cure,” be moreappropriate?

➢ The ability of the government under the Patriot Act to monitor non-citizens,such as foreign students, is much greater than for citizens. Is this appropriate, orshould most or all of the same civil liberties enjoyed by citizens also be extendedfor visiting foreign nationals?

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I want to make three points. First, thePatriot Act debate must be understood incontext. The debate is fundamentally driv-en by concerns not only about the fourcorners of the legislation itself, but bywhat it reflects about the Bush Admini-stration’s approach toward civil liberties inthe “war on terrorism.” Full Congressionalconsideration of the concerns expressedaround the nation about the Patriot Act,therefore, must not be limited to the six-teen specific sunsetting provisions [thosewhich expire at a set time unless reenact-ed], and not even to the Patriot Act itself,but should also consider the impact ofexecutive initiatives outside the Act thathave raised serious civil liberties issues. Iwill first seek to set out these broader con-cerns as background for the Patriot Actdebate, and urge that Congress considerthe Patriot Act inquiry the beginning, notthe end, of its inquiry into civil liberties inthe war on terrorism.

Second, while several of the Patriot Actprovisions that are subject to the sunsetraise substantial civil liberties concerns,other provisions, not sunsetted, raise evenmore grave constitutional problems. Tomy mind, the worst provisions from a civilliberties standpoint are those addressingimmigration and material support to “ter-rorist organizations.” I will spend the bulkof my time addressing these provisions,particularly as others on this panel willfocus on the sunsetting provisions.

Third, in my view, of the Patriot Act’ssunsetting provisions, Section 218 raisesthe most substantial constitutional ques-tions, and calls for significant reforms.

That provision is often credited for bring-ing down “the wall” between foreign intel-ligence and law enforcement. That claimis greatly exaggerated. Moreover, Section218’s enactment creates a range of veryserious constitutional concerns about thescope of FISA authority and the proce-dures for introducing FISA evidence incriminal trials that merit sustainedCongressional consideration.

I. THE PATRIOT ACT DEBATE IN CONTEXT

Debate about the Patriot Act has beenheated almost since its enactment. Whileonly a single Senator, Russell Feingold,voted against it when it was passed just sixweeks after 9/11, six states (Alaska,Hawaii, Idaho, Maine, Montana, andVermont) and over 370 cities and townshave since then enacted resolutions con-demning the civil liberties abuses of thePatriot Act and of the Bush Admini-stration’s war on terrorism more generally.A bipartisan coalition of liberal and con-servative groups has formed an alliance torestore checks and balances, and a triparti-san caucus has formed in the House withthe same goals in mind. A bipartisan coali-tion in the Senate has introduced theSAFE Act, designed to amend many of thesurveillance provisions of the Patriot Act.

Defenders of the Patriot Act oftenlament that in this debate, the Act gets anundeservedly bad rap. It’s true that theAct sometimes gets blamed for thingswith which it has nothing to do. Indeed,many of the worst human rights abusescommitted by the Bush Administration in

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Anti-Terrorist Legislation:Threat to Civil Liberties

DAVID COLE



the name of the “war on terror” are notattributable to the Patriot Act—includingthe pretextual use of immigration law andthe material witness law to lock up thou-sands of Arab and Muslim foreign nation-als who had nothing to do with terrorism;the indefinite detention of some persons,including U.S. citizens, as “enemy com-batants,” without any trial or even hear-ing; the development and application ofcomputer data mining programs thatafford the government ready access to awealth of private information about all ofus without any basis for suspicion; theFBI’s monitoring of public meetings andreligious services without any basis forsuspecting criminal activity under guide-lines relaxed by John Ashcroft; and theuse of “coercive interrogation” to extractinformation from suspects in the war onterror, by such tactics as “waterboarding,”in which the suspect is made to fear thathe is drowning in order to “encourage”him to talk.

To take just one example, consider theAdministration’s use of immigration lawto embark on a nationwide campaign ofethnic profiling targeting foreign nationalsof Arab and Muslim descent. TheAdministration called in 80,000 men for“special registration,” simply because theycame from Arab and Muslim countries.The FBI sought to interview 8,000 youngmen, again simply because they camefrom Arab and Muslim countries. And thegovernment has admitted to detainingover 5,000 foreign nationals, nearly all ofthem Arab and Muslim, in anti-terrorismpreventive detention initiatives since 9/11.Many of those detained were initiallyarrested without any charges at all. Theywere detained even where the governmenthad no factual basis for believing that theywere dangerous or a risk of flight. Menwere locked up and designated “of inter-est” on the basis of such information as a

tip that “too many Middle Eastern men”were working at a convenience store. Theywere held in secret and tried in secret. Andin many instances, they were held longafter their immigration cases wereresolved, simply because the FBI had notyet “cleared” them of connections to ter-rorism. These measures were putativelydesigned to identify terrorists. Yet of the80,000 registered, 8,000 interviewed, and5,000 detained, not a single one standsconvicted of a terrorist crime to this day.

These and many other initiatives under-taken in our name unquestionably consti-tute abuses of basic liberties—from theright to privacy to the right not to belocked up arbitrarily to the right not to betortured. But they did not stem from thePatriot Act. The Patriot Act has nonethe-less become a symbol for the Admini-stration’s disregard for basic civil libertiesand constitutional principles because it wasthe Administration’s first salvo in the waron terrorism, and because its approach isemblematic of so much of the Admini-stration’s subsequent actions. It infringesconstitutional freedoms, discriminatesagainst foreign nationals, and undermineschecks and balances on executive power.Moreover, it was adopted, like so manyother anti-terrorism initiatives, withoutsufficient deliberation, and with virtuallyno attention paid to the costs to liberty andfreedom posed by its reforms. As such, it isa fitting symbol for a widespread uneasewith the Administration’s tactics in the waron terror.

The fact that so many civil libertiesabuses have arisen outside the Patriot Actdoes not relieve Congress of its responsibil-ity to investigate these abuses and to pro-vide corrective legislation where appropri-ate. Congress could, for example, expresslybar the government from inflicting tortureand cruel, inhuman, and degrading treat-ment on any of its detainees anywhere in

Anti-Terrorist Legislation 5



the world, but it has not. Congress couldcall for an Independent Commission toinvestigate the torture scandal, but it hasnot. Congress could place limits on politi-cal spying by the FBI, but it has not.Congress could ensure that data miningprograms build in privacy protections, butagain it has not. In short, the concernsexpressed by many Americans about thePatriot Act go far beyond the literal termsof that document. So, too, should Con-gress’s oversight and inquiry.

It is worth comparing judicial and leg-islative responses to the war on terrorism.The courts have begun to play an impor-tant checking role in the war on terror.They have rejected the Bush Admini-stration’s assertion that it could lock upanyone anywhere in the world withoutjudicial review. They have required thatthe detainees at Guantanamo be providedwith access to counsel. They have invali-dated the processes employed by theCombatant Status Review Tribunals andthe military tribunals. They have declaredunconstitutional various provisions of thePatriot Act. They have rejected a JusticeDepartment regulation that permittedimmigration prosecutors to keep immi-grants detained even after immigrationjudges found no basis for their detention.They have ruled that they have jurisdic-tion to consider a habeas petition from aU.S. citizen held for twenty months with-out charges in Saudi Arabia allegedly atU.S. behest. They have required thePentagon, FBI, and CIA to disclose exten-sive records relating to the torture scandal.They have declared unconstitutional thegovernment’s practice of holding immigra-tion hearings entirely in secret. And theyhave thrown out terrorism convictionsbased on prosecutorial misconduct.

Never before have courts played such animportant checking role in the context of anational security crisis. Perhaps the courts

have learned the lesson of excessive defer-ence in World War I, World War II, andthe Cold War. Perhaps they have learnedthe lesson of the importance of checks andbalances of the Watergate era. Whateverthe reason, the courts have played anincreasingly significant checking function.

But the courts are not the only branchwith responsibility to uphold theConstitution and to check aggrandizingbehavior by the Executive. Congressshares that responsibility. With a fewexceptions, Congress has not played thatrole in the current crisis. The Patriot Actdebate is a welcome start, but it should beonly the beginning.

II. IMMIGRATION AND MATERIALSUPPORT

Much of the Patriot Act is uncontroversialfrom a civil liberties perspective. Pro-visions increasing resources for patrollingthe northern border, strengthening moneylaundering laws, eliminating some barriersto information sharing between lawenforcement and intelligence officials, andimproving visa processing, raise few con-cerns. But many provisions of the PatriotAct are deeply troubling from a civil liber-ties standpoint. And in many instances,the reforms they introduce have not beenshown to have made us safer. I will focusmy remarks on the immigration and mate-rial support provisions, because these pro-visions simultaneously raise the most sig-nificant constitutional concerns and havereceived the least attention.

A. Immigration Provisions

The immigration provisions of thePatriot Act, Sections 411 and 412, author-ize exclusion of foreign nationals forspeech, deportation for innocent associa-tions with disfavored groups, and deten-tion without charges. They go far beyondany legitimate need to protect the nation

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from terrorist threats. And they infringeon basic rights of speech, association, anddue process. Yet Congress has not takenup these concerns, and is poised to makethe problems far worse in a little-noticedpart of the Iraq supplemental appropria-tions bill approved by the House on May5, 2005, and slated for a vote in the Senatethis week.

1. Deportation for AssociationsSection 411 of the Patriot Act allows

the government to expel foreign nation-als—even long-time lawful permanent res-idents—based solely on their associationwith a disfavored organization. The Actpermits deportation for “material support”to any organization blacklisted as “terror-ist” by the Secretary of State or theAttorney General. It is no defense to showthat one’s support to the group furtheredonly lawful, nonviolent ends, nor is it anydefense to show that the group has notengaged in any terrorist activities. If thislaw had been on the books in the 1980s,any foreign national who donated to theAfrican National Congress for its largelylawful, nonviolent opposition to apartheidin South Africa would have beendeportable, because the State Departmentdesignated the African National Congressa terrorist group until it came to power inSouth Africa with the fall of apartheid.

The reach of the Patriot Act deportationprovisions is illustrated by a current case Iam handling for the Center for Con-stitutional Rights. It involves KhaderHamide and Michel Shehadeh, twoPalestinians in Los Angeles who have livedhere as lawful permanent residents formore than thirty years each. They havenever been charged with a crime. Yet thegovernment is seeking their deportationunder the Patriot Act, passed in 2001, forconduct they engaged in nearly twodecades earlier, in the 1980s. The govern-ment alleges that they are deportable under

the Patriot Act for having distributed magazines of a Palestine LiberationOrganization faction, and for having raisedmoney for humanitarian aid to Palestiniansin the West Bank and Lebanon. On thegovernment’s view, it does not matter thatthese activities were lawful at the time theywere engaged in, or that they are protectedby the First Amendment.

A second case that illustrates how far-reaching this provision is involves thedeportation of an Indian man. In thatcase, the court held that the Patriot Actauthorized the man’s deportation for hav-ing set up a tent for religious services andfood, simply because some unidentifiedmembers of a designated terrorist organi-zation reportedly came to the services andpartook of the food. There was no show-ing that the Indian man intended to fur-ther any terrorist activity by setting up thetent. Such deportations do not make theUnited States safer.

2. Ideological ExclusionSection 411 is even more expansive

with regard to the grounds for denyingforeign nationals entry in the first place. Itresurrects the practice of “ideologicalexclusion,” keeping people out of thecountry not for their past or current con-duct, not even based on any reasonableconcern that they might engage in crimi-nal or terrorist conduct once here, butbased solely on their speech. If they say something that the Secretary of Stateconsiders to “endorse terrorism,” they may be kept out. In 2004, the BushAdministration apparently invoked thisprovision in denying a visa to TariqRamadan, a highly respected Swiss scholarof Islam who had been offered a chair atNotre Dame.

3. Preventive Detention Without ChargesSection 412 of the Patriot Act allows

the Attorney General to lock up foreign




nationals without charges for seven days,and indefinitely thereafter if they arecharged with an immigration violation.The law does not require any showing thatthe foreign national poses a danger to thecommunity or a risk of flight—the onlytwo constitutionally valid reasons for pre-ventive detention. And it permits theAttorney General to keep the foreignnational locked up even after he has beengranted relief from removal, which is akinto saying that the government can keep aprisoner behind bars even after the gover-nor has granted him a pardon. The gov-ernment has not yet invoked this provi-sion, calling into question its claim thatthe authority was absolutely essential tofight terrorism.…

B. Criminal Material Support Provisions

The Patriot Act also expanded themost expansive “anti-terrorism” criminallaw on the books prior to its passage,which criminalizes the provision of“material support” to designated “terroristorganizations.” The Patriot Act expandedthis already expansive law by criminaliz-ing pure speech. It amended the criminalban on material support to designated ter-rorist organizations by banning “expertadvice or assistance”—without regard towhat the advice consists of. In a case thatI am handling for the Center forConstitutional Rights, a federal courtdeclared this Patriot Act provision uncon-stitutional. In that case, I represent ahuman rights organization that seeks toprovide human rights training to aKurdish organization in Turkey that hasbeen designated a “terrorist organization.”The government has argued that it maycriminalize as “expert advice” this humanrights organization’s advice on humanrights advocacy, without regard to the factthat the advice was being offered toencourage the group to pursue peaceful

means to resolve its disputes and to dis-courage resort to violence. The court heldthe provision unconstitutionally vague.

In the first prosecution brought underthis provision, the government arguedthat a student at the University of Idahoshould be found guilty for operating aweb site that featured links to other websites that in turn included speechespreaching violent jihad. It was irrelevant,the government contended, that there was no evidence that the student himselfhad advocated any violence. An Idahojury acquitted the student on all terrorismcharges.…

C. Administrative Material SupportProvisions

Section 106 of the Patriot Act amendsan administrative scheme that has alsobeen used to target “material support” oforganizations and individuals deemed“terrorist.” This provision authorizes thegovernment to freeze assets of domesticcorporations and individuals withoutshowing any violation of law, and withoutany meaningful adversarial testing of itsbasis for doing so. It allows the govern-ment to freeze all assets of any individualor entity simply by declaring that it is“under investigation” for violating an eco-nomic embargo on providing goods orservices to a designated “terrorist.” Thegovernment has placed such embargoes ondozens of organizations and hundreds ofindividuals, all around the world. Thegovernment claims that the authority todesignate stems from the InternationalEmergency Economic Powers Act, whichnever mentions the word “terrorist.” Thereis no statutory or even regulatory defini-tion of a “terrorist” for purposes of IEEPA,and therefore a terrorist is whatever theAdministration says it is.

Section 106 permits the TreasuryDepartment to freeze all assets of a U.S.

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citizen or corporation merely by statingthat they are “under investigation” for hav-ing a financial transaction with such anembargoed entity. The provision thenallows the Treasury Department to defendits actions in court by submitting secretevidence that the challenger cannot see orrebut. This authority has been used tofreeze the assets of several of the largestMuslim charities in the United States.When the charities have sued in federalcourt to challenge their designation, theyhave been met with secret evidence.Moreover, given that there is no statutoryor regulatory definition of a designated“terrorist” under IEEPA, it is entirelyunclear what standard courts are to applyin assessing whether a designation is appro-priate. This law gives the Executive brancha wide-ranging blank check to freeze theassets of any entity or person it chooses,under a literally standardless authority, andthen to defend its actions in secret. It ispossible that some or all of the half-dozenor so charities that the government has tar-geted were guilty of funneling money tofurther terrorism. But it is also possiblethat all of the charities are entirely inno-cent. We cannot know, because the PatriotAct eliminated any fair process for distin-guishing the innocent from the guilty.

There is no question that funding ter-rorist activity should be prohibited. It wasprohibited long before the Patriot Act.What the criminal and administrative pro-visions added by the Patriot Act do isextend government sanctions—includingsubstantial prison sentences—to conductthat is not intended to further terroristactivity, and that in fact does not furtherterrorist activity. In addition, the TreasuryDepartment provisions deprive those tar-geted of any fair opportunity to show thattheir actions had nothing to do with ter-rorism. In the name of cutting off fundsfor terrorism, then, these provisions crim-

inalize speech and deny citizens basic dueprocess rights.

III. SECTION 218 AND “THE WALL”

Of the surveillance provisions that are sub-ject to sunset, to my mind the most con-stitutionally dubious may be Section 218.That provision substantially expandedauthority to conduct wiretaps and searchesunder the Foreign Intelligence SurveillanceAct (FISA) without probable cause ofcriminal activity. The number of FISAsearches has dramatically increased sincethe Patriot Act was passed, and for the firsttime now exceeds the number of wiretapsissued on probable cause of criminal activ-ity. Yet because of the secrecy that sur-rounds FISA searches, we know virtuallynothing about them. The target of a FISAsearch is never notified that he wassearched, unless evidence from the search issubsequently used in a criminal prosecu-tion. Even then the defendant cannot seethe application for the search, and there-fore cannot meaningfully test its legality incourt. And while the Attorney General isrequired to file an extensive report on hisuse of criminal wiretaps, listing the legalbasis for each wiretap, its duration, andwhether it resulted in a criminal charge orconviction, no such information isrequired under FISA. The annual reportdetailing use of the criminal wiretapauthority exceeds 100 pages; the report onthe use of FISA is a one-page letter.

Section 218 of the Patriot Act expand-ed the reach of FISA searches and wiretapsby allowing their use even where thegovernment’s primary purpose for investi-gating is criminal law enforcement. Priorto the Patriot Act, where the govern-ment’s primary focus was criminal lawenforcement, it was required to satisfy thecriminal probable cause standards set forthby the Fourth Amendment of theConstitution. It had to show probable




cause that the target of the search had evi-dence of crime in his possession, or hadcommitted a crime. Where, by contrast,the government’s principal purpose wasnot criminal law enforcement but foreignintelligence gathering, it could obtain awarrant for a search or wiretap under FISAsimply by showing that the target was an“agent of a foreign power.” That term isloosely defined to include any employee ofany political organization made up of amajority of noncitizens. The warrantapplication need not show probable causeof criminal activity. Thus, literally applied,FISA would authorize a search or wiretapof a British lawyer working for AmnestyInternational, without any requirement ofsuspicion that the lawyer be engaged inillegal activity.

The Patriot Act extended that loosestandard to investigations undertakenprimarily for criminal law enforcementpurposes, so long as “a significant pur-pose” of the search is also foreign intelli-gence gathering. A secret court upheldthis amendment in a secret one-sidedappeal by the government soon after thePatriot Act was enacted.

Defenders of this provision often claimthat it eliminated a “wall” between crimi-nal law enforcement and foreign intelli-gence agencies. But that is an exaggera-tion. FISA did not require such a wallbefore the Patriot Act was enacted. It didnot bar prosecutors or law enforcementagents from turning over information tointelligence agents, nor did it stop foreignintelligence agents from sharing withcriminal prosecutors evidence of crimethat they had discovered in their investiga-tions, whether under FISA or otherwise.Evidence obtained in FISA searches couldbe, and was, used in criminal trials longbefore the Patriot Act.

There were unquestionably many bar-riers to information sharing before 9/11.

But their principal source was not FISA,but administrative and bureaucratic cul-ture. Agencies were engaged in turf wars,and there were few if any mechanisms orincentives in place to break down theinstitutional boundaries between agen-cies. Legitimate concerns about notrevealing sources make information sharing difficult even in the most wellorganized operations. But the blame forthese problems cannot be laid at the footof FISA.

Critics of the wall sometimes suggestthat before the Patriot Act, once a foreignintelligence investigation became primari-ly a criminal investigation, the govern-ment would have to take down the tap.But that is also not true. Once an investi-gation became primarily criminal innature, government agents would simplyhave to satisfy the standards applicable tocriminal investigations—namely, by show-ing that they had probable cause that thetap would reveal evidence of criminal con-duct. The tap or the search could thencontinue. If an investigation has becomeprimarily criminal in nature, it should notbe too much to ask that the governmentshow probable cause of criminal conductto carry out a search or wiretap.

Indeed, the Constitution demands noless. FISA’s constitutionality turns on anuntested assumption that the governmentmay engage in searches and wiretaps forforeign intelligence purposes on a lowershowing of suspicion than is required forcriminal law investigations. FISA does notrequire the government to show probablecause that evidence of a crime will befound, but only probable cause that thetarget of the search is an “agent of a for-eign power.” “Foreign power” is in turndefined so broadly that it encompasses anypolitical organization comprised of amajority of noncitizens. Where “U.S. per-sons” are the target of a FISA search, the

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government must make additional show-ings, but to search the home of a foreignnational here on a work permit, for exam-ple, the government need only show thathe’s an employee of an organization madeup principally of noncitizens. It need notshow that the individual be engaged in anycriminal wrongdoing whatsoever, muchless terrorism.

If FISA searches are constitutional,then, they must be justified on the basis ofsome application of the “administrativesearch” exception to the general FourthAmendment rule requiring probable causeand a warrant for criminal law enforce-ment searches. That exception permitssearches in limited settings on less thanprobable cause where the search servessome special need beyond criminal lawenforcement. The FISA Court of Reviewrelied on precisely this exception to findFISA searches valid. But the SupremeCourt has carefully limited the “adminis-trative search” exception to situations inwhich the government is pursuing a spe-cial need divorced from criminal lawenforcement—e.g., highway or railroadsafety, secondary school discipline, orenforcement of an administrative regime.It has refused to apply the exception wherethe government is engaged in criminal lawenforcement, as in a checkpoint to searchfor cars carrying drugs. And the Court hasalso refused to apply the exception wherethe government has a “special need,” but isusing criminal law enforcement to furtherthat need. Thus, it struck down a hospitalprogram that subjected pregnant mothersto drug tests for the ultimate purpose ofprotecting the health of the fetus, wherethe hospital shared the test results withprosecutors in order to threaten the moth-ers with criminal prosecution if they didnot seek drug treatment.

Where an investigation becomes pri-marily focused on criminal law enforce-

ment, therefore, the “administrativesearch” exception no longer applies, andSupreme Court doctrine would compelthe government to meet the traditionalstandards of criminal probable cause.Before the Patriot Act, FISA conformed tothat requirement. By abandoning that dis-tinction and allowing searches on less thanprobable cause where the government isprimarily seeking criminal prosecution,Section 218 raises a serious constitutionalquestion. Thus, Section 218 was not onlyunnecessary to bring down the wall, butmay render FISA unconstitutional.

Two reforms short of repeal are worthconsidering. First, if Section 218 is to beretained, thereby expanding the scope ofFISA searches, Congress should revisitFISA’s definition of “agent of a foreignpower” and “foreign intelligence informa-tion.” Those terms, particularly as appliedto non-U.S. persons, are sweeping, andhave nothing to do with terrorism. Asnoted above, the definitions are so broadthat they would authorize a tap of a Britishlawyer for Amnesty International, to gath-er any information that might relate toforeign affairs. It is one thing to claim thatFISA authorities should be available toinvestigate terrorism; it is another matterentirely to extend those same powers topersons engaged in no criminal activitywhatsoever. Thus, the definitions of “agentof foreign power” and “foreign intelligenceinformation” should be narrowed.

Finally, Section 218 and other reformshave made it increasingly likely that infor-mation obtained through FISA wiretapsand searches will be used against defen-dants in criminal cases. In light of thesedevelopments, a useful reform at thispoint would be a provision permittingcriminal defendants—or their clearedcounsel—an opportunity to review theinitial application for the FISA wiretap orsearch when contesting the admissibility




of evidence obtained through a FISAsearch. Under current law, they have nosuch opportunity. Without access to thewarrant application, defendants and theirattorneys cannot meaningfully challengethe legality of the tap or search in the firstplace. And when government officialsknow that their actions will never see thelight of day, they are more likely to betempted to cut corners. An amendmentrequiring disclosure of FISA applicationswhere evidence is sought to be used in acriminal trial would encourage adherenceto the law by putting federal officials onnotice that at some point the legality ofthe FISA warrant would be subjected toadversarial testing. Concerns about confi-dentiality could be met by limiting accessto cleared counsel where necessary, and/orby applying the protections of theClassified Information Procedures Act.But there is no good reason for the currentblanket exemption against the productionof all such applications in criminal cases.

The presumption should be in favor ofadversarial testing where evidence is to beused in a criminal case.

CONCLUSION

In its treatment of foreign nationals, itsexpansive definition of “material support”to terrorist groups, and its authorization ofsurveillance not tied to probable cause ofcriminal activity, the Patriot Act has sub-stantially eroded fundamental constitu-tional freedoms. It did so in the name offighting terrorism, but many of its author-ities are written far more broadly than thatmotive would warrant—penalizing speechand association, eliminating fair proce-dures for distinguishing the guilty fromthe innocent, and authorizing searcheswithout probable cause and secrecy with-out compelling justification. Measuresmore carefully tailored to terrorist activitymight well have been justified. But the lastthing the Patriot Act could ever be accusedof is careful tailoring.

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It is my pleasure to discuss the USAPatriot Act. Approximately three-and-a-half years ago, our nation suffered a greattragedy. Thousands of our fellow citizenswere murdered at the World Trade Center,the Pentagon, and a field in ruralPennsylvania. We will never forget thatday or the heroes who perished on thathallowed ground. Forever in our nation’scollective memory are stories of the NewYork City firefighters who rushed intoburning buildings so that others might liveand of the brave passengers who broughtdown United Airlines Flight 93 before itcould reach Washington, DC, and themessages from those trapped in the WorldTrade Center saying their last goodbyes toloved ones as they faced certain death willstay forever in our hearts.

In the wake of this horrific attack onAmerican soil, we mourned our nation’sterrible loss. In addition, we came togetherin an effort to prevent such a tragedy fromever happening again. Members of bothparties worked together on legislation toensure that investigators and prosecutorswould have the tools they need to uncoverand disrupt terrorist plots. Additionally,members joined hands across the aisle toguarantee that our efforts to update andstrengthen the laws governing the investi-gation and prosecution of terrorismremained firmly within the parameters ofthe Constitution and our fundamentalnational commitment to the protection ofcivil rights and civil liberties.

The result of this collaboration was thePatriot Act, which passed both Houses ofthe Congress with overwhelming biparti-

san majorities and was signed into law byPresident Bush on October 26, 2001. Inthe past three-and-a-half years, the PatriotAct has been an integral part of the feder-al government’s successful prosecution ofthe war against terrorism. Thanks to theAct, we have been able to identify terroristoperatives, dismantle terrorist cells, dis-rupt terrorist plots, and capture terroristsbefore they have been able to strike.

Many of the most important provisionsof the Patriot Act, however, are scheduledto expire at the end of this year. Therefore,I am here today primarily to convey onesimple message: All provisions of thePatriot Act that are scheduled to sunset atthe end of this year must be made perma-nent. While we have made considerableprogress in the war against terrorism in thepast three-and-a-half years, al Qaeda andother terrorist groups still pose a gravethreat to the safety and security of theAmerican people. The tools contained inthe Patriot Act have proven to be essentialweapons in our arsenal to combat the ter-rorists, and now is not the time for us tobe engaging in unilateral disarmament.Moreover, many provisions in the Act sim-ply updated the law to reflect recent tech-nological developments and have beenused, as was intended by Congress, notonly in terrorism cases, but also to combatother serious criminal conduct. If theseprovisions are not renewed, the depart-ment’s ability to combat serious offensessuch as cybercrime, child pornography,and kidnappings will also be hindered.…

I would like to explain how key provi-sions of the Patriot Act have helped to pro-


Anti-Terrorist Legislation:Constitutional Shield:

ALBERTO R. GONZALES



tect the American people. I will particular-ly focus on those sections of the Act thatare scheduled to expire at the end of 2005.To begin with, I will discuss how thePatriot Act has enhanced the federal gov-ernment’s ability to share intelligence.Then, I will explain how the Patriot Actprovided terrorism investigators withmany of the same tools long available toinvestigators in traditional criminal cases.Additionally, I will explore how the PatriotAct updated the law to reflect new tech-nology. And finally, I will review how theAct protects the civil liberties of theAmerican people and respects the impor-tant role of checks and balances within thefederal government.

INFORMATION SHARING

The most important reforms contained inthe Patriot Act improved coordination andinformation sharing within the federalgovernment. Prior to the attacks ofSeptember 11, 2001, our counterterror-ism efforts were severely hampered byunnecessary obstacles and barriers toinformation sharing. These obstacles andbarriers, taken together, have beendescribed as a “wall” that largely separatedintelligence personnel from law enforce-ment personnel, thus dramatically ham-pering the department’s ability to detectand disrupt terrorist plots.

It is vitally to understand how the“wall” was developed and how it was dis-mantled, not for the purpose of placingblame but rather to ensure that it is neverrebuilt. Before the passage of the PatriotAct, the Foreign Intelligence SurveillanceAct (FISA) [1978] mandated that applica-tions for orders authorizing electronic sur-veillance or physical searches under FISAwere required to include a certificationthat “the purpose” of the surveillance orsearch was to gather foreign intelligenceinformation. This requirement, however,

came to be interpreted by the courts andlater the Department of Justice to requirethat the “primary purpose” of the collec-tion was to obtain foreign intelligenceinformation rather than evidence of acrime. And, because the courts evaluatedthe department’s purpose for using FISA,in part, by examining the nature andextent of coordination between intelli-gence and law enforcement personnel, themore coordination that occurred, themore likely courts would find that lawenforcement, rather than foreign intelli-gence, had become the primary purpose ofthe surveillance or search, a finding thatwould prevent the court from authorizingsurveillance under FISA. As a result, overthe years, the “primary purpose” standardhad the effect of constructing a metaphor-ical “wall” between intelligence and lawenforcement personnel.

During the 1980s, a set of largelyunwritten rules only limited informationsharing between intelligence and lawenforcement officials to some degree. In1995, however, the Department [ofJustice] established formal procedures thatlimited the sharing of information betweenintelligence and law enforcement person-nel. The promulgation of these procedureswas motivated in part by the concern thatthe use of FISA authorities would not beallowed to continue in particular investiga-tions if criminal prosecution began to over-come intelligence gathering as an investiga-tion’s primary purpose.

As they were originally designed, theprocedures were intended to permit adegree of interaction and informationsharing between prosecutors and intelli-gence officers, while at the same timeensuring that the FBI would be able toobtain or continue FISA surveillance andlater use the fruits of that surveillance in acriminal prosecution. Over time, however,coordination and information sharing

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between intelligence and law enforcementinvestigators became even more limited inpractice than was permitted in theory.Due both to the complexities of therestrictions on information sharing and toa perception that improper informationsharing could end a career, investigatorsoften erred on the side of caution andrefrained from sharing information. Theend result was a culture within the depart-ment sharply limiting the exchange ofinformation between intelligence and lawenforcement officials.

In hindsight, it is difficult to overem-phasize the negative impact of the “wall.”In order to uncover terrorist plots, it isessential that investigators have access to asmuch information as possible. Often, onlyby piecing together disparate and seem-ingly unrelated points of information areinvestigators able to detect suspicious pat-terns of activity, a phenomenon generallyreferred to as “connecting the dots.” If,however, one set of investigators has accessto only one-half of the dots, and anotherset of investigators has access to the otherhalf of the dots, the likelihood that eitherset of investigators will be able to connectthe dots is significantly reduced.

The operation of the “wall” was vividlyillustrated in testimony from PatrickFitzgerald, U.S. Attorney for the NorthernDistrict of Illinois, before the SenateJudiciary Committee:

I was on a prosecution team in NewYork that began a criminal investigation ofOsama Bin Laden in early 1996. Theteam—prosecutors and FBI agentsassigned to the criminal case—had accessto a number of sources. We could talk tocitizens. We could talk to local police offi-cers. We could talk to other U.S. govern-ment agencies. We could talk to foreignpolice officers. Even foreign intelligencepersonnel. And foreign citizens. And wedid all those things as often as we could.

We could even talk to al Qaeda mem-bers—and we did. We actually called sev-eral members and associates of al Qaeda totestify before a grand jury in New York.And we even debriefed al Qaeda membersoverseas who agreed to become cooperat-ing witnesses.

But there was one group of people wewere not permitted to talk to. Who? TheFBI agents across the street from us inlower Manhattan assigned to a parallelintelligence investigation of Osama BinLaden and al Qaeda. We could not learnwhat information they had gathered. Thatwas “the wall.”

Thanks in large part to the Patriot Act;this “wall” has been lowered. Section 218of the Act, in particular, helped to teardown the “wall” by eliminating the “pri-mary purpose” requirement under FISAand replacing it with a “significant pur-pose” test. Under section 218, the depart-ment may now conduct FISA surveillanceor searches if foreign-intelligence gather-ing is a “significant purpose” of the sur-veillance or search. As a result, courts nolonger need to compare the relative weightof the “foreign intelligence” and “lawenforcement” purposes of a proposed sur-veillance or search and determine which isthe primary purpose; they simply need todetermine whether a significant purposeof the surveillance is to obtain foreignintelligence. The consequence is that intel-ligence and law enforcement personnelmay share information much more freelywithout fear that such coordination willundermine the department’s ability tocontinue to gain authorization for surveil-lance under FISA.

Section 218 of the Patriot Act not onlyremoved what was perceived at the time asthe primary impediment to robust infor-mation sharing between intelligence andlaw enforcement personnel; it also provid-ed the necessary impetus for the removal




of the formal administrative restrictions aswell as the informal cultural restrictionson information sharing. Thanks to thePatriot Act, the department has been ableto move from a culture where informationsharing was viewed with a wary eye to onewhere it is an integral component of ourcounterterrorism strategy. Following pas-sage of the Act, the department adoptednew procedures specifically designed toincrease information sharing betweenintelligence and law enforcement person-nel. Moreover, Attorney General [John]Ashcroft instructed every U.S. Attorneyacross the country to review intelligencefiles to discover whether there was a basisfor bringing criminal charges against thesubjects of intelligence investigations. Healso directed every U.S. Attorney to devel-op a plan to monitor intelligence investi-gations, to ensure that information aboutterrorist threats is shared with other agen-cies, and to consider criminal charges inthose investigations.

The increased information sharingfacilitated by section 218 of the PatriotAct has led to tangible results in the waragainst terrorism: plots have been disrupt-ed; terrorists have been apprehended; andconvictions have been obtained in terror-ism cases. Information sharing betweenintelligence and law enforcement person-nel, for example, was critical in successful-ly dismantling a terror cell in Portland,Oregon, popularly known as the “PortlandSeven,” as well as a terror cell inLackawanna, New York. Such informationsharing has also been used in the prosecu-tion of [numerous other individuals whohave pled guilty or been convicted ofcrimes relating to terrorism].…

While the “wall” primarily blocked theflow of information from intelligenceinvestigators to law enforcement investi-gators, another set of barriers, before thepassage of the Patriot Act, often prevent-

ed law enforcement officials from sharinginformation with intelligence personneland others in the government responsiblefor protecting the national security.Federal law, for example, was interpretedgenerally to prohibit federal prosecutorsfrom disclosing information from grandjury testimony and criminal investigativewiretaps to intelligence and nationaldefense officials even if that informationindicated that terrorists were planning afuture attack, unless such officials wereactually assisting with the criminal inves-tigation. Sections 203(a) and (b) of thePatriot Act, however, eliminated theseobstacles to information sharing byallowing for the dissemination of thatinformation to assist federal law enforce-ment, intelligence, protective, immigra-tion, national defense, and national secu-rity officials in the performance of theirofficial duties, even if their duties areunrelated to the criminal investigation.(Section 203(a) covers grand jury infor-mation, and section 203(b) covers wire-tap information).

Section 203(d), likewise, ensures thatimportant information that is obtained bylaw enforcement means may be sharedwith intelligence and other national secu-rity officials. This provision does so by cre-ating a generic exception to any other lawpurporting to bar federal law enforcement,intelligence, immigration, nationaldefense, or national security officials fromreceiving, for official use, informationregarding foreign intelligence or counter-intelligence obtained as part of a criminalinvestigation. Indeed, section 905 of thePatriot Act requires the Attorney Generalto expeditiously disclose to the Director ofCentral Intelligence foreign intelligenceacquired by the Department of Justice inthe course of a criminal investigationunless disclosure of such informationwould jeopardize an ongoing investigation

16 Debate 24



or impair other significant law enforce-ment interests.

The department has relied on section203 in disclosing vital information to theintelligence community and other federalofficials on many occasions. Such disclo-sures, for instance, have been used to assistin the dismantling of terror cells inPortland, Oregon and Lackawanna, NewYork, to support the revocation of suspect-ed terrorists’ visas, to track terrorists’ fund-ing sources, and to identify terrorist oper-atives overseas.

The information sharing provisionsdescribed above have been heralded byinvestigators in the field as the mostimportant provisions of the Patriot Act.Their value has also been recognized bythe 9/11 Commission, which stated in itsofficial report that “[t]he provisions in theact that facilitate the sharing of informa-tion among intelligence agencies andbetween law enforcement and intelligenceappear, on balance, to be beneficial.”

If Congress does not act by the end ofthe year, we will soon take a dramatic stepback to the days when unnecessary obsta-cles blocked vital information sharing.Three of the key information sharing pro-visions of the Patriot Act, sections 203(b),203(d), and 218, are scheduled to sunsetat the end of the year. It is imperative thatwe not allow this to happen. To ensurethat the “wall” is not reconstructed andinvestigators are able to “connect the dots”to prevent future terrorist attacks, theseprovisions must be made permanent.

USING PREEXISTING TOOLS INTERRORISM INVESTIGATIONS

In addition to enhancing the informationsharing capabilities of the department, thePatriot Act also permitted several existinginvestigative tools that had been used foryears in a wide range of criminal investiga-tions to be used in terrorism cases as well.

Essentially, these provisions gave investiga-tors the ability to fight terrorism utilizingmany of the same court-approved toolsthat have been used successfully and con-stitutionally for many years in drug, fraud,and organized crime cases.

Section 201 of the Patriot Act is onesuch provision. In the context of criminallaw enforcement, federal investigatorshave long been able to obtain court ordersto conduct wiretaps when investigatingnumerous traditional criminal offens-es.…Prior to the passage of the PatriotAct, however, certain extremely seriouscrimes that terrorists are likely to commitwere not [permitted under federal law],which prevented law enforcement author-ities from using wiretaps to investigatethese serious terrorism-related offenses. Asa result, law enforcement could obtainunder appropriate circumstances a courtorder to intercept phone communicationsin a passport fraud investigation but not achemical weapons investigation or aninvestigation into terrorism transcendingnational boundaries.

Section 201 of the Act ended this anom-aly in the law by amending the criminalwiretap statute to add the following terror-ism-related crimes to the list of wiretappredicates: (1) chemical-weapons offenses;(2) certain homicides and other acts of vio-lence against Americans occurring outsideof the country; (3) the use of weapons ofmass destruction; (4) acts of terrorism tran-scending national borders; (5) financialtransactions with countries which supportterrorism; and (6) material support of ter-rorists and terrorist organizations.

This provision simply enables investiga-tors to use wiretaps when looking into thefull range of terrorism-related crimes. Thisauthority makes as much, if not more, sensein the war against terrorism as it does in tra-ditional criminal investigations; if wiretapsare an appropriate investigative tool to be




utilized in cases involving bribery, gam-bling, and obscenity, then surely investi-gators should be able to use them wheninvestigating the use of weapons of massdestruction, acts of terrorism transcendingnational borders, chemical weapons offens-es, and other serious crimes that terroristsare likely to commit.

It is also important to point out that sec-tion 201 preserved all of the pre-existingstandards in the wiretap statute. For exam-ple, law enforcement must file an applica-tion with a court, and a court must findthat: (1) there is probable cause to believean individual is committing, has commit-ted, or is about to commit a particularpredicate offense; (2) there is probablecause to believe that particular communica-tions concerning that offense will beobtained through the wiretap; and (3) “nor-mal investigative procedures” have beentried and failed or reasonably appear to beunlikely to succeed or are too dangerous.

Section 206 of the Patriot Act, like sec-tion 201 discussed above, provided terror-ism investigators with an authority thatinvestigators have long possessed in tradi-tional criminal investigations. Before thepassage of the act, multipoint or so-called“roving” wiretap orders, which attach to aparticular suspect rather than a particularphone or communications facility, werenot available under FISA. As a result, eachtime an international terrorist or spyswitched communications providers, forexample, by changing cell phones orInternet accounts, investigators had toreturn to court to obtain a new surveil-lance order, often leaving investigatorsunable to monitor key conversations.,

Section 206 of the Act amended the lawto allow the FISA Court to authorize multi-point surveillance of a terrorist or spy whenit finds that the target’s actions may thwartthe identification of those specific individu-als or companies, such as communications

providers, whose assistance may be neededto carry out the surveillance. Thus, theFISA Court does not have to name in thewiretap order each telecommunicationscompany or other “specified person” whoseassistance may be required.

A number of federal courts—includingthe Second, Fifth, and Ninth Circuits [ofthe U.S. Court of Appeals]—have square-ly ruled that multi-point wiretaps are per-fectly consistent with the FourthAmendment. Section 206 simply author-izes the same constitutional techniquesused to investigate ordinary crimes to beused in national-security investigations.Despite this fact, section 206 remains oneof the more controversial provisions of thePatriot Act. However, as in the case ofmulti-point wiretaps used for traditionalcriminal investigations, section 206 con-tains ample safeguards to protect the pri-vacy of innocent Americans.

First, section 206 did not change FISA’srequirement that the target of multi-pointsurveillance must be identified or describedin the order. In fact, section 206 is alwaysconnected to a particular target of surveil-lance. For example, even if the JusticeDepartment is not sure of the actual identi-ty of the target of such a wiretap, FISAnonetheless requires our attorneys to pro-vide a description of the target of the elec-tronic surveillance to the FISA Court priorto obtaining multi-point surveillance order.

Second, just as the law required prior tothe Act, the FISA Court must find thatthere is probable cause to believe the targetof surveillance is either a foreign power oran agent of a foreign power, such as a ter-rorist or spy. In addition, the FISA Courtmust also find that the actions of the tar-get of the application may have the effectof thwarting surveillance before multi-point surveillance may be authorized.

Third, section 206 in no way alteredthe robust FISA minimization procedures

18 Debate 24



that limit the acquisition, retention, anddissemination by the government of infor-mation or communications involvingUnited States persons.

Section 214 is yet another provision ofthe Patriot Act that provides terrorisminvestigators with the same authority thatinvestigators have long possessed in tradi-tional criminal investigations. Specifically,this section allows the government toobtain a pen register or trap-and-traceorder in national security investigationswhere the information to be obtained islikely to be relevant to an international ter-rorism or espionage investigation. A penregister or trap-and-trace device can trackrouting and addressing information abouta communication—for example, whichnumbers are dialed from a particular tele-phone. Such devices, however, are not usedto collect the content of communications.

Under FISA, intelligence officers mayseek a court order for a pen register ortrap-and-trace to gather foreign intelli-gence information or information aboutinternational terrorism. Prior to the enact-ment of the Patriot Act, however, FISArequired government personnel to certifynot just that the information they soughtto obtain with a pen register or trap-and-trace device would be relevant to theirinvestigation, but also that the particularfacilities being monitored, such as phones,were being used by foreign governments,international terrorists, or spies. As aresult, it was much more difficult toobtain a pen register or trap-and-tracedevice order under FISA than it was underthe criminal wiretap statute, where theapplicable standard was and remains sim-ply one of relevance in an ongoing crimi-nal investigation.

Section 214 of the Act simply harmo-nized the standard for obtaining a penregister order in a criminal investigationand a national-security investigation by

eliminating the restriction limiting FISApen register and trap-and-trace orders tofacilities used by foreign agents or agentsof foreign powers. Applicants must still,however, certify that a pen register ortrap-and-trace device is likely to revealinformation relevant to an internationalterrorism or espionage investigation orforeign intelligence information not con-cerning a United States person. This pro-vision made the standard contained inFISA for obtaining a pen register or trap-and-trace order parallel with the standardfor obtaining those same orders in thecriminal context. Now, as before, investi-gators cannot install a pen register or trap-and-trace device unless they apply for andreceive permission from the FISA Court.

I will now turn to section 215, which Irecognize has become the most controver-sial provision in the Patriot Act. This pro-vision, however, simply granted nationalsecurity investigators the same authoritythat criminal investigators have had forcenturies—that is, to request the produc-tion of records that may be relevant totheir investigation. For years, ordinarygrand juries have issued subpoenas toobtain records from third parties that arerelevant to criminal inquiries. But just asprosecutors need to obtain such records inorder to advance traditional criminalinvestigations, so, too, must investigatorsin international terrorism and espionagecases have the ability, with appropriatesafeguards, to request the production ofrelevant records.

While obtaining business records is along-standing law enforcement tactic thathas been considered an ordinary tool incriminal investigations, prior to the PatriotAct it was difficult for investigators toobtain access to the same types of recordsin connection with foreign intelligenceinvestigations. Such records, for example,could be sought only from common carri-




ers, public accommodation providers,physical storage facility operators, andvehicle rental agencies. In addition, intelli-gence investigators had to meet a higherevidentiary standard to obtain an orderrequiring the production of such recordsthan prosecutors had to meet to obtain agrand jury subpoena to require the pro-duction of those same records in a crimi-nal investigation.

To address this anomaly in the law, sec-tion 215 of the Act made several impor-tant changes to the FISA business-recordsauthority so that intelligence agents wouldbe better able to obtain crucial informa-tion in important national-security inves-tigations. Section 215 expanded the typesof entities that can be compelled to dis-close information. Under the old provi-sion, the FBI could obtain records onlyfrom “a common carrier, public accom-modation facility, physical storage facilityor vehicle rental facility.” The new provi-sion contains no such restrictions. Section215 also expanded the types of items thatcan be requested. Under the old authority,the FBI could only seek “records.” Now,the FBI can seek “any tangible things(including books, records, papers, docu-ments, and other items).”

I recognize that section 215 has beensubject to a great deal of criticism becauseof its speculative application to libraries,and based on what some have said aboutthe provision, I can understand whymany Americans would be concerned.The government should not be obtainingthe library records of law-abidingAmericans, and I will do everything with-in my power to ensure that this will nothappen on my watch.

Section 215 does not focus on libraries.Indeed, the Patriot Act nowhere mentionsthe word “library,” a fact that manyAmericans are surprised to learn. Section215 simply does not exempt libraries from

the range of entities that may be requiredto produce records. Now some have sug-gested, since the department has no inter-est in the reading habits of law-abidingAmericans, that section 215 should beamended to forbid us from using the pro-vision to request the production of recordsfrom libraries and booksellers. This, how-ever, would be a serious mistake.

Libraries are currently not safe havensfor criminals. Grand jury subpoenas havelong been used to obtain relevant recordsfrom libraries and bookstores in criminalinvestigations. In fact, law enforcementused this authority in investigating theGianni Versace murder case as well as thecase of the Zodiac gunman in order todetermine who checked out particularbooks from public libraries that were rele-vant in those murder investigations. Andif libraries are not safe havens for commoncriminals, neither should they be safehavens for international terrorists or spies,especially since we know that terroristsand spies have used libraries to plan andcarry out activities that threaten ournational security. The Justice Department,for instance, has confirmed that, as recent-ly as the winter and spring of 2004, amember of a terrorist group closely affili-ated with al Qaeda used Internet serviceprovided by a public library to communi-cate with his confederates.

Section 215, moreover, contains veryspecific safeguards in order to ensure thatthe privacy of law-abiding Americans,both with respect to their library recordsas well as other types of records, is respect-ed. First, section 215 expressly protectsFirst Amendment rights, unlike grand jurysubpoenas. Even though libraries andbookstores are not specifically mentionedin the provision, section 215 does prohib-it the government from using this author-ity to conduct investigations “of a UnitedStates person solely on the basis of activi-

20 Debate 24



ties protected by the First Amendment tothe Constitution of the United States.” Inother words, the library habits of ordinaryAmericans are of no interest to those con-ducting terrorism investigations, nor arethey permitted to be.

Second, any request for the productionof records under section 215 must beissued through a court order. Therefore,investigators cannot use this authorityunilaterally to compel any entity to turnover its records; rather, a judge must firstapprove the government’s request. By con-trast, a grand jury subpoena is typicallyissued without any prior judicial review orapproval. Both grand jury subpoenas andsection 215 orders are also governed by astandard of relevance. Under section 215,agents may not seek records that are irrel-evant to an investigation to obtain foreignintelligence information not concerning aUnited States person or to protect againstinternational terrorism or clandestineintelligence activities.

Third, section 215 has a narrow scope.It can only be used in an authorized inves-tigation (1) “to obtain foreign intelligenceinformation not concerning a UnitedStates person”; or (2) “to protect againstinternational terrorism or clandestineintelligence activities.” It cannot be usedto investigate ordinary crimes, or evendomestic terrorism. On the other hand, agrand jury many obtain business recordsin investigations of any federal crime.

Finally, section 215 provides for thor-ough congressional oversight that is notpresent with respect to grand-jury subpoe-nas. On a semi-annual basis, I must “fullyinform” appropriate congressional com-mittees concerning all requests for recordsunder section 215 as well as the number ofsection 215 orders granted, modified, ordenied. To date, the department has pro-vided Congress with six reports regardingits use of section 215.

Admittedly, the recipient of an orderunder section 215 is not permitted tomake that order publicly known, and thisconfidentiality requirement has generatedsome fear among the public. It is critical,however, that terrorists are not tipped offprematurely about sensitive investigations.Otherwise, their conspirators may flee andkey information may be destroyed beforethe government’s investigation has beencompleted. As the U.S. Senate concludedwhen adopting FISA: “By its very nature,foreign intelligence surveillance must beconducted in secret.”

UPDATING THE LAW TO REFLECTNEW TECHNOLOGY

As well as providing terrorism investiga-tors many of the same tools that lawenforcement investigators had long pos-sessed in traditional criminal investiga-tions, many sections of the Patriot Actupdated the law to reflect new technolo-gy and to prevent sophisticated terroristsand criminals from exploiting that newtechnology. Several of these provisions,some of which are currently set to sunsetat the end of this year, simply updatedtools available to law enforcement in thecontext of ordinary criminal investiga-tions to address recent technologicaldevelopments, while others sought tomake existing criminal statutes technolo-gy-neutral. I wish to focus on five suchprovisions of the Act, which are currentlyset to expire at the end of 2005. Thedepartment believes that each of theseprovisions has proven valuable andshould be made permanent.

Section 212 amended the ElectronicCommunications Privacy Act to author-ize electronic communications serviceproviders [such AOL and other Internetservice providers] to disclose communica-tions and records relating to customers orsubscribers in an emergency involving the




immediate danger of death or serious phys-ical injury. Before the Patriot Act, forexample, if an Internet service provider hadlearned that a customer was about to com-mit a terrorist act and notified law enforce-ment to that effect, the service providercould have been subject to civil lawsuits.Now, however, providers are permitted vol-untarily to turn over information to thegovernment in emergencies without fear ofcivil liability. It is important to point outthat they are under no obligation whatso-ever to review customer communicationsand records. This provision also correctedan anomaly in prior law under which anInternet service provider could voluntarilydisclose the content of communications toprotect itself against hacking, but couldnot voluntarily disclose customer recordsfor the same purpose.

Communications providers have reliedupon section 212 to disclose vital andtime-sensitive information to the govern-ment on many occasions since the passageof the Patriot Act, thus saving lives. To givejust one example, this provision was usedto apprehend an individual threatening todestroy a Texas mosque before he couldcarry out his threat. Jared Bjarnason, a 30-year-old resident of El Paso, Texas, sent ane-mail message to the El Paso IslamicCenter on April 18, 2004, threatening toburn the Islamic Center’s mosque to theground if hostages in Iraq were not freedwithin three days. Section 212 allowed FBIofficers investigating the threat to obtaininformation quickly from electronic com-munications service providers, leading tothe identification and arrest of Bjarnasonbefore he could attack the mosque. It is notclear, however, that absent section 212investigators would have been able tolocate and apprehend Bjarnason in time.

Should section 212 expire, communi-cations providers would be able to disclosethe content of customers’ communica-

tions in emergency situations but wouldnot be able voluntarily to disclose non-content customer records pertaining tothose communications. Such an outcomewould defy common sense. Allowingsection 212 to expire, moreover, woulddramatically restrict communicationsproviders’ ability voluntarily to discloselife-saving information to the governmentin emergency situations.

Section 202, for its part, modernizedthe criminal code in light of the increasedimportance of telecommunications anddigital communications. The provisionallows law enforcement to use pre-existingwiretap authorities to intercept voice com-munications, such as telephone conversa-tions, in the interception of felony offens-es under the Computer Fraud and AbuseAct. These include many important cyber-crime and cyberterrorism offenses, such ascomputer espionage and intentionallydamaging a federal government computer.Significantly, section 202 preserved all ofthe pre-existing standards in the wiretapstatute, meaning that law enforcementmust file an application with a court, anda court must find that: (1) there is proba-ble cause to believe an individual is com-mitting, has committed, or is about tocommit a particular predicate offense; (2)there is probable cause to believe that par-ticular communications concerning thatoffense will be obtained through the wire-tap; and (3) “normal investigative proce-dures” have been tried and failed or rea-sonably appear to be unlikely to succeedor are too dangerous. If wiretaps are anappropriate investigative tool to be uti-lized in cases involving bribery, gambling,and obscenity, as was the case prior to thepassage of the Patriot Act, then surelyinvestigators should be able to use themwhen investigating computer espionage,extortion, and other serious cybercrimeand cyberterrorism offenses.

22 Debate 24



Turning to section 220, that provisionallows courts, in investigations over whichthey have jurisdiction, to issue search war-rants for electronic evidence stored out-side of the district where they are located.Federal law requires investigators to use asearch warrant to compel an Internet serv-ice provider to disclose unopened e-mailmessages that are less than six months old.Prior to the Patriot Act, some courtsinterpreting Rule 41 of the Federal Rulesof Criminal Procedure declined to issuesearch warrants for e-mail messages storedon servers in other districts, leading todelays in many time-sensitive investiga-tions as investigators had to bring agents,prosecutors, and judges in another districtup to speed. Requiring investigators toobtain warrants in distant jurisdictionsalso placed enormous administrative bur-dens on districts in which major Internetservice providers are located, such as theNorthern District of California and theEastern District of Virginia.

Section 220 fixed this problem. Itmakes clear, for example, that a judge withjurisdiction over a murder investigation inPennsylvania can issue a search warrant fore-mail messages pertaining to that investi-gation that were stored on a server inSilicon Valley [in California].…Thedepartment has already utilized section220 in important terrorism investigations.[For example], section 220 was useful inthe…infamous “shoebomber” terroristRichard Reid [who tried to blow up atransatlantic flight in 2001].

Contrary to concerns voiced by some,section 220 does not promote forum-shopping; the provision may be used onlyin a court with jurisdiction over the inves-tigation. Investigators may not ask anycourt in the country to issue a warrant toobtain electronic evidence.

It is imperative that section 220 berenewed; allowing the provision to expire

would delay many time-sensitive investi-gations and result in the inefficient use ofinvestigators’, prosecutors’, and judges’time.

Moving to section 209, that provisionmade existing statutes technology-neutralby providing that voicemail messagesstored with a third-party provider shouldbe treated like e-mail messages andanswering machine messages, which maybe obtained through a search warrant.Previously, such messages fell under therubric of the more restrictive provisionsof the criminal wiretap statute, whichapply to the interception of live conversa-tions. Given that stored voice communi-cations possess few of the sensitivitiesassociated with the real-time interceptionof telephone communications, it wasunreasonable to subject attempts toretrieve voice-mail message stored withthird-party providers to the same burden-some process as requests for wiretaps.Section 209 simply allows investigators,upon a showing of probable cause, toapply for and receive a court-orderedsearch warrant to obtain voicemails heldby a third-party provider, preserving allof the pre-existing standards for theavailability of search warrants. Since thepassage of the Patriot Act, such searchwarrants have been used in a variety ofcriminal cases to obtain key evidence,including voicemail messages left for for-eign and domestic terrorists, and toinvestigate a large-scale Ecstasy smug-gling ring based in the Netherlands.

The speed with which voicemail isseized and searched can often be critical toan investigation given that deleted mes-sages are lost forever. Allowing section 209to expire, as it is set to do in 2005, wouldonce again require different treatment forstored voicemail messages than for mes-sages stored on an answering machine in aperson’s home, needlessly hampering law




enforcement efforts to investigate crimesand obtain evidence in a timely manner.

Section 217 similarly makes criminallaw technology-neutral, placing cyber-trespassers on the same footing as physicalintruders by allowing victims of comput-er-hacking crimes voluntarily to requestlaw enforcement assistance in monitoringtrespassers on their computers. Just as bur-glary victims have long been able to inviteofficers into their homes to catch thethieves, hacking victims can now invitelaw enforcement assistance to assist themin combating cyber-intruders. Section 217does not require computer operators toinvolve law enforcement if they detecttrespassers on their systems; it simply givesthem the option to do so. In so doing, sec-tion 217 also preserves the privacy of law-abiding computer users by sharply limit-ing the circumstances under which section217 is available. Officers may not agree tohelp a computer owner unless (1) they areengaged in a lawful investigation; (2) thereis reason to believe that the communica-tions will be relevant to that investigation;and (3) their activities will not acquire the communications of non-trespassers.Moreover, the provision amended thewiretap statute to protect the privacy of anInternet service provider’s customers byproviding a definition of “computer tres-passer” which excludes an individual whohas a contractual relationship with theservice provider. Therefore, for example,section 217 would not allow Earthlink toask law enforcement to help monitor ahacking attack on its system that was ini-tiated by one of its own subscribers.

Since its enactment, section 217 hasplayed a key role in sensitive national secu-rity matters, including investigations intohackers’ attempts to compromise militarycomputer systems. Section 217 is also par-ticularly helpful when computer hackerslaunch massive “denial of service”

attacks—which are designed to shut downindividual web sites, computer networks,or even the entire Internet. Allowing sec-tion 217 to expire, which is set to occur in2005, would lead to a bizarre world inwhich a computer hacker’s supposed pri-vacy right would trump the legitimate pri-vacy rights of a hacker’s victims, making itmore difficult to combat hacking andcyberterrorism effectively.

PROTECTING CIVIL LIBERTIES

While the Patriot Act provided investiga-tors and prosecutors with tools critical forprotecting the American people, it is vitalto note that it did so in a manner fullyconsistent with constitutional rights of theAmerican people. In section 102 of thePatriot Act, Congress expressed its sensethat “the civil rights and civil liberties ofall Americans…must be protected,” andthe Patriot Act does just that.

In the first place, the Patriot Act con-tains several provisions specificallydesigned to provide additional protectionto the civil rights and civil liberties of allAmericans. Section 223, for example,allows individuals aggrieved by any willfulviolation of the criminal wiretap [restric-tions to sue in federal court for] not lessthan $10,000 in damages. This provisionallows an individual whose privacy is vio-lated to sue the United States for moneydamages if federal officers or employeesdisclose sensitive information withoutlawful authorization.

Section 223 also requires federaldepartments and agencies to initiate a pro-ceeding to determine whether disciplinaryaction is warranted against an officer oremployee whenever a court or agencyfinds that the circumstances surrounding aviolation of Title III raise serious questionsabout whether that officer or employeewillfully or intentionally violated Title III.To date, there have been no administrative

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disciplinary proceedings or civil actionsinitiated under section 223 of the PatriotAct. I believe that this reflects the fact thatemployees of the Justice Department con-sistently strive to comply with their legalobligations. Nevertheless, section 223 pro-vides an important mechanism for hold-ing the Department of Justice account-able, and I strongly urge Congress not toallow it to sunset at the end of 2005.

Additionally, section 1001 of the PatriotAct requires the Justice Department’sInspector General to designate one officialresponsible for the review of complaintsalleging abuses of civil rights and civil lib-erties by Justice Department employees.This individual is then responsible for con-ducting a public awareness campaignthrough the Internet, radio, television, andnewspaper advertisements to ensure thatindividuals know how to file complaintswith the Office of the Inspector General.

Section 1001 also directs the Office ofInspector General to submit to thisCommittee and the House JudiciaryCommittee on a semi-annual basis a reportdetailing any abuses of civil rights and civilliberties by department employees or offi-cials. To date, six such reports have beensubmitted by the Office of the InspectorGeneral. I am pleased to be able to statethat the Office of the Inspector Generalhas not documented in these reports anyabuse of civil rights or civil liberties by thedepartment related to the use of any sub-stantive provision of the Patriot Act.

In addition to containing special provi-sions designed to ensure that the civil

rights and civil liberties of the Americanpeople are respected, the Patriot Act alsorespects the vital role of the judiciary byproviding for ample judicial oversight toguarantee that the constitutional rights of all Americans are safeguarded [asdescribed above].…I would note that thedepartment has gone to great lengths torespond to congressional concerns aboutthe implementation of the Patriot Act.The department has, for example, provid-ed answers to more than 520 oversightquestions from members of Congressregarding the Patriot Act. In the 108thCongress alone, in fact, the departmentsent 100 letters to Congress that specifi-cally addressed the Patriot Act. Thedepartment also has provided witnesses atover 50 terrorism-related hearings, and itsemployees have conducted numerous for-mal and informal briefings with Membersand staff on Patriot Act provisions.

CONCLUSION

In closing, the issues that we are discussingtoday are absolutely critical to our nation’sfuture success in the war against terrorism.The Patriot Act has a proven record of suc-cess when it comes to protecting the safe-ty and security of the American people,and we cannot afford to allow many of theAct’s most important provisions to expireat the end of the year. For while we cer-tainly wish that the terrorist threat woulddisappear on December 31, 2005, we allknow that this will not be the case.




THE CONTINUING DEBATE: Anti-Terrorist Legislation

What Is NewIn 2003, the Bush administration proposed the Domestic Security Enhancement Actof 2003 (dubbed Patriot Act II), which further expands the surveillance possibilitiesof Patriot Act I. The legislation did not pass in Congress, but critics charge that manyof its provisions were slipped into other legislation, such as the IntelligenceAuthorization Act for 2004. The debate over the Patriot Act was renewed during theeffort to renew it in 2005, as required by the initial act. The primary bill to do that,H.R. 3199 was passed by the House and passed as amended by the Senate. At thiswriting, the work to resolve the differences in the House and Senate versions is in aconference committee. Challenges to the Patriot Act have not yet made their way tothe Supreme Court, but one, Doe v. Gonzales, relating to the ability of investigatorsto get library borrowing records, is in the U.S. Court of Appeals and is considered bymany observers a good bet to soon be on the Supreme Court’s docket.

The public is split on its view of the Patriot Act and civil liberties. A 2005 surveyfound that 30% of its respondents thought the act goes “too far” to restrict rights,41% thought the restrictions are “about right,” 21% thought the provisions “do notgo far enough,” and 8% were unsure.

Where to Find MoreThere are numerous Web sites lauding and decrying the Patriot Act. The fate of H.R. 3199 can be found on the now familiar Thomas site at http://thomas.loc.gov/.For a supportive view, go to the U.S. Department of Justice Web site at: http://www.usdoj.gov/. Select search and keyboard in “patriot act.” For a critical perspective,visit the site of the American Civil Liberties Union at: http://www.aclu.org/SafeandFree/. Finally, for a balanced analysis of the Patriot Act, including an exposi-tion of the surveillance possibilities prior to it, read Nathan C. Henderson, “Impacton the Government’s Ability to Conduct Electronic Surveillance of OngoingDomestic Communications,” Duke Law Journal, October 2002. The article is avail-able on the Web at: http://www.law.duke.edu/journals/.

What More to DoOne key thing to do is to get involved. Find out what has happened to H.R. 3199 inthe 109th Congress. If it remains pending before Congress, decide what you think,and act on that conviction by telling your three representatives in Congress what yourposition is and why. If it has passed or been defeated, find out how your members ofCongress voted.

Finally, do not just be “for” or “against” things. How would you simultaneouslygive the government the tools it needs to guard against terrorists and preserve the civilliberties the citizenry needs to guard against the government? Perhaps you and othersin your class could write an act to Protect Americans’ Traditional Rights whileInvestigating and Obstructing Terrorism, Patriot III.

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