Yesterday, the Senate Judiciary Committee voted to reauthorize three expiring provisions in the USA PATRIOT Act. While the bill they passed strengthened civil liberties in several small ways, the Committee failed to make any meaningful improvements to the Patriot provisions that are most prone to abuse. Disturbingly, Obama Administration officials played a significant behind the scene role in opposing stronger civil liberties protections, directly contradicting Obama’s positions as a Senator.
Two of the most problematic surveillance powers the Patriot Act grants law enforcement are 1) National Security Letters (NSLs) and 2) Section 215 orders. As a Senator, Obama supported reforming both sets of powers “to protect the freedoms of innocent Americans while also ensuring that the government has the power it needs to investigate potential terrorists.” Senator Obama supported these protections through the SAFE Act, which he co-sponsored in the 109th Congress, and also in a signed 2005 letter to his Senate colleagues.
Under the Patriot Act, FBI agents may issue NSLs to obtain comprehensive financial and communications records about anyone, including people suspected of no wrongdoing and no connection to terrorists or foreign powers. To do this, the FBI merely needs to claim the information is relevant to an investigation. Anyone receiving one of these orders is prohibited by law from speaking about it to anyone else, except their attorney. The FBI issues tens of thousands of NSLs each year, most of them directed at U.S. citizens and lawful permanent residents.
As a Senator, Obama favored raising the standard for issuing an NSL to require a link between the records sought and a terrorist, spy, or other agent of a foreign power. Yet the Obama Administration opposed an even weaker standard – one that would require that the government draft an internal statement of "specific and articulable facts" showing that the information sought was somehow relevant to an investigation. Instead, according to the deliberations of the Judiciary Committee, the Administration favored a mere relevance standard.
Section 215 works in a similar manner to NSLs, enabling the FBI to require anyone to produce "tangible things"—such as business records—relevant to an investigation to protect against international terrorism. As Senator, Obama supported an amendment to raise the standard for issuing a Section 215 order to require a link between the records sought and a terrorist, spy, or other agent of a foreign power. The Obama Administration opposed this very change to the Patriot Act, dooming its prospects in the Senate Judiciary Committee.
These expansive powers have already been abused. The Justice Department's own Inspector General (IG) issued two reports on the use of NSLs from 2003 to 2006. The IG found that the FBI issued NSLs when it had not even opened an investigation, and that the FBI retained information obtained through NSLs almost indefinitely, even when the person is not suspected of any crime. Often the information obtained with an NSL is made widely available to thousands of people in law enforcement and intelligence agencies.
So what happened? Why did President Obama about-face on the very civil liberties protections he supported a few short years ago as a Senator? Has the President now determined that the contraction of American civil liberties is outweighed by the political risk of something happening on his watch? With Democrats in charge of Congress and strong civil libertarians at the helm of the House and Senate Judiciary Committees, the time for Patriot Act reform is now. But with the Administration pushing in the wrong direction, the chances for reform have been diminished. Now it's up to the House Judiciary Committee to stand its ground. The opportunity for real reform will not come again anytime soon. Congress needs to do the right thing, even if Obama will not.
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