WASHINGTON -- After two weeks of explosive tension, controversial portions of the USA Patriot Act died a slow, albeit temporary, death Sunday, having been pushed and prodded by tag-teaming senators through filibusters, failed votes and strategic blocks to their extension.
As 12:01 a.m. rolled around Monday morning, the United States intelligence apparatus was left asking: now what?
The National Security Agency’s sweeping domestic dragnets have temporarily ceased to exist. Its ability to run new “roving wiretaps” -- a program that can track several devices under one court order -- is gone, as is its ability to collect certain business records under the Patriot Act’s Section 215. The never-used "lone wolf" provision, used to track individuals who aren't necessarily a part of an organized terror group, has also lapsed.
Its likely that the programs will be up and running again within days once the Senate passes the USA Freedom Act, though with notable changes to the secret shield that the data dragnets operate behind. But amid consistent saber-rattling and fear-mongering from the White House in recent days, there’s room to ask: Does the multibillion-dollar U.S. intelligence apparatus truly have no backup plan?
National security wonks and NSA critics say the nation’s spies may have lobbed a red herring: Even if the NSA lost the programs permanently, there’s plenty of room to start new programs or use ones operating under other secret laws that haven’t expired.
"One of the great myths surveillance state supporters continue to repeat is that if these [Patriot Act] Sec. 215 authorities expire, the government won't be able to get the kind of data it collected under these programs previously,” said Patrick Eddington, a policy analyst at the CATO Institute on NSA matters and a former staffer on the House Intelligence Committee. “Bottom line: The claim that NSA 'goes dark' if Sec. 215 expires is errant nonsense.”
Indeed, though Section 215 of the Patriot Act is gone for now, there appear to be multiple avenues available for the nation’s sweeping intelligence arm to fill in those gaps. While the expired provisions may have made things more convenient, the notion that there’s “not a failsafe,” as one senior administration official put it to reporters Wednesday, seems to be an overstatement.
"Some of the expiring authorities provide efficiency as opposed to new capabilities or authorities,” Steven Cash, a former counsel to the Senate Intelligence and Judiciary Committees, said of the expired provisions. "Whether they could do things in the absence of the statutory authority to fill in the gaps, I'll sort of start with the obvious -- it’s a big intelligence community, they have lots and lots of capabilities they’re going to have to look to."
And they may not even have to look further than a few sections down in the Patriot Act.
Tucked away in Section 224 of the act is what’s come to be known as its “grandfather” clause. That clause allows active investigations that were started prior to Sunday's expiration to continue under the now-defunct programs, and lawmakers have confirmed that's a viable option. White House press secretary Josh Earnest said Monday that routine use of Section 215 is still occurring under the grandfather clause.
But beyond the grandfather clause, other avenues still exist. The White House's ability to run roving wiretaps was convenient, as it saved time if a terror suspect was switching phones frequently. But it’s not impossible to fill that gap, though it may be more clunky and require more subpoenas or court orders.
Sunday’s deadline also doesn’t necessarily make it harder to get these orders, either. Section 218 of the Patriot Act, which doesn’t expire, sets a fairly low bar for getting these court orders, requiring only that wiretaps or collection can yield foreign intelligence.
Section 214 of the act is also still standing. It involves pen register and trap-and-trace devices, which can record the numbers and recipients of phone calls and communications. How that collection will function given the blurry line between Internet and telephone communications remains to be seen.
Additionally, the FBI has its own tools it can use to collect personal information: National Security Letters, which are used to force companies -- including banks and telecommunications companies -- to turn over information.
Those alternatives are not as convenient as the programs that expired Sunday. For example, a different senior government official pointed out to HuffPost that pen registers and trap-and-trace devices don’t get the content of calls, which roving wiretaps do. Additionally, those devices only collect metadata going forward, and can’t be used to retroactively collect data on past calls.
“It’s total apples and oranges,” the official said last week when asked about the intelligence community’s other options. “It’s not just raising the bar slightly. It’s changing what we [can collect].”
Additionally, the official said, the loss of the programs could leave time gaps in surveillance. For example, the government might need to pause collection in order to get another court order.
“This is not an ‘on the one hand, on the other hand’ issue ... we lose connection and we can’t recreate that,” the official said.
But surveillance critics say there are plenty of tools still available.
“Regarding the 'roving wiretap' and 'business records' provisions ... the government can continue to get phone records via the 'trap & trace/pen register' authorities of the PATRIOT Act [Section 214], as well as justify collecting personal information by claiming it's needed because it may contain 'foreign intelligence information' [Section 218], or conducting 'sneak and peek' searches [Section 213],” CATO Institute's Eddington told HuffPost in an email. “And of course, they can always get a warrant from the FISA court for surveillance on an emergency basis for several days, then get it continued under existing FISA authorities if they meet existing FISA statutory requirements.”
Even as the White House says it has no options to replace the expiring provisions, analysts themselves have decried the overabundance of surveillance programs. Some intelligence officials have internally voiced concern that the flood of data has the reverse effect of slowing intelligence-gathering, as there’s too much to sift through.
According to documents from former NSA contractor-turned-whistleblower Edward Snowden, analysts privately worried that the government has too many surveillance programs. The inundation of data collections, the Intercept writes, actually makes it harder to gather good intelligence.
“We in the agency are at risk of a similar, collective paralysis in the face of a dizzying array of choices every single day,” one analyst wrote in 2011.
Even if the U.S. government can’t find one of its dizzying number of surveillance programs to fill in the gaps left by the expiring Patriot Act provisions, there’s always the option of an executive order. And no one’s really sure how they’ll operate in a post-Patriot Act world.
"The question of what is the remaining organic power of the president of the United States to authorize our intelligence activities absent statutory authority, such as in the Patriot Act, is still a legal question and has never really been fully settled." Cash said.
One executive order in particular has been used to skirt congressional authorization before: E.O. 12333.
Pronounced “twelve-triple-three,” the executive mandate is a little-known order that, despite countless warnings from whistleblowers, intelligence community leaders and even NSA defenders, has skirted most of the spotlight as the debate over sweeping NSA spying barrels through the halls of Congress.
It’s a broad order, written in the era of Reagan and largely unchanged since, despite massive advancements in technology and telecommunications. Among other things, it contains provisions that outline broadly how intelligence agencies can collect data on foreign targets and American citizens. It's been used in the past to back hugely controversial programs.
"It doesn’t really create any programs and authorities in and of itself, as opposed to being the organizing document of the United States intelligence community," Cash said.
The Terrorist Surveillance Program, the blockbuster, post-9/11 domestic wiretapping operation run by the Bush administration in the aftermath of the attacks, was run pursuant to 12333. And although that program specifically has been ended, intelligence agencies still rely heavily on the order.
Former NSA director Keith Alexander told Congress in 2013 that his agency “conducts the majority of its [Signals Intelligence] authorities ... solely pursuant to the authority provided by Executive Order 12333.”
And both within the intelligence community and among its chief defenders, that doesn’t sit well.
Intelligence Committee Vice-Chair Dianne Feinstein (D-Calif.), who vehemently defended the NSA’s Patriot Act program, has consistently voiced concern over the programs NSA runs under 12333, saying they’re largely unchecked by Congress and subject to far looser privacy restrictions. And Jonathan Napier Tye, an intelligence community whistleblower, says 12333 should cause even more concern than the sweeping programs revealed by Snowden.
“Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under [Patriot Act] Section 215,” Tye wrote last year.
Twelve-triple-three, firmly stuck in intelligence wonk-land, could prove to be the administration’s answer to the gaps it has warned about in the runup to Sunday’s expiration date. So could the plethora of other surveillance programs it will still have under the Patriot Act.
And as for the administration’s claims that the expiration means the process will be slower, since they’ll need to prove more to collect Americans’ data? NSA critics are asking why this is such a problem.
"If that requires individual court orders in some cases to get data on individual Americans, so much the better,” Eddington said. “That's what Madison, Jefferson and the founders intended."
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