Congressman Ryan on the Patriot Act

I am on an email distribution list for Congressman Paul Ryan (R-WI). Yesterday, his office sent out a mail about the Patriot Act renewal the House just passed.

The House of Representatives today approved the final version (Conference Report) of H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005 by a vote of 251-174. First District Congressman Paul Ryan voted in favor of the measure, which reauthorizes expiring provisions of the PATRIOT Act (and two provisions of the Intelligence Reform Act) most of which were scheduled to sunset this month. The legislation ensures our law enforcement officials will retain the tools they need to protect our homeland and fight terrorism, while at the same time carefully preserving citizens' constitutional rights and civil liberties.

"By tearing down unnecessary bureaucratic barriers that prevented law enforcement and intelligence officers from sharing information, the Patriot Act has made our nation more secure. It is an absolutely critical tool in fighting - and winning - the war on terror," Ryan said. "It also achieves the essential balance between improving our government's ability to detect and counter terrorist plots and preserving citizens' rights and privacy."

"This legislation includes safeguards that will enhance the law's civil liberties protections and prompt continued oversight by Congress and the courts. Protecting citizens' constitutional rights remains our highest priority. That's why I believe it is critical that we keep monitoring and reviewing the application of this law to ensure that Americans' rights and freedoms are upheld," Ryan said.

Among its provisions, the PATRIOT Act, which passed in 2001 after the September 11 terrorist attacks, did the following:

* Removed major legal barriers that prevented the law enforcement, intelligence, and national defense communities from coordinating their work and sharing information;
* Gave law enforcement the ability to use many of the same tools for terrorist
investigations that it already used to fight organized crime;
* Modernized wiretapping and surveillance laws that apply to terrorist investigations in order to keep up with changing technologies such as cell phones and e-mail.

The legislation makes permanent 14 of 16 expiring PATRIOT Act provisions, but subjects two provisions to a four-year sunset. Congressman Ryan approves of these sunsets because they necessitate continued congressional oversight that will help ensure the protection of Americans' civil liberties. The provisions that are scheduled to sunset in four years are:

* Section 206, which authorizes "roving" wiretaps for terrorist investigations, which attach to a particular target rather than a particular phone. Advances in technology such as cell phones made this update to surveillance law important, which is why criminal cases have had the ability to use roving wiretaps for years. Before the PATRIOT Act, every time a suspected terrorist changed cell phones, investigators
had to return to court for a new order.

* Section 215, which gives the government the ability to get business records and other tangible things with an order from a federal court in a terrorist investigation. For years, ordinary grand juries have issued subpoenas to businesses for records relevant to criminal inquiries. Section 215 of the PATRIOT Act contains safeguards that protect civil liberties, and it is actually more protective of privacy than the law for ordinary grand-jury subpoenas. Section 215 has a narrow scope, requires a court order,and provides for continued congressional oversight.

In addition, the conference report permanently extends one of two expiring provisions in the Intelligence Reform and Terrorism Prevention Act, and subjects the other provision (the so-called "lone wolf" provision that amended the definition of an agent of a foreign power to include a foreign national who is preparing for or engaging in international terrorism) to a four-year sunset.

Among the details included in the Conference Report on H.R. 3199 that enhance protections for citizens' privacy and constitutional rights are the following:

Multi-point or "roving"wiretaps (Section 206)

* Requires a description of a specific target in both the application and the court order, if the target's true identity is unknown.
* Requires specific facts in the application showing that the target's actions may thwart surveillance efforts.
* Requires the FBI to notify the court within ten days after beginning surveillance of any new phone. This notice must include the facts and circumstances that justify the FBI's belief that each new phone is being used, or is about to be used, by the target.

Obtaining business records with a court order (Section 215)

* Requires applications for orders for business records to include a statement of facts showing "reasonable grounds to believe" that the records sought are relevant to an authorized investigation to protect against terrorism or espionage.
* Includes additional procedural protections for Section 215 orders:
- the explicit right for recipients to consult legal counsel and to seek judicial review;
- the requirement that a senior FBI official approve requests for certain sensitive documents, such as library records;
- the use of minimization procedures to limit "the retention, and prohibit the dissemination" of information concerning U.S. persons;
- audits by the Department of Justice Inspector General;
- enhanced reporting to Congress; and
- public reporting.

Delayed-notice search warrants (Section 213)

* This provision authorizes delayed-notice search warrants which allow the government to wait a number of days after executing a search warrant before notifying the target of the search.
* Requires notice of the search to be given within 30 days of execution, unless the facts justify a later date certain.
* Permits extensions of the delay period, but only "upon an updated showing of the need for further delay." It also limits any extensions to 90 days or less, unless the facts of the case justify a longer delay.
* Adds new public reporting on the use of delayed-notice warrants.

National Security Letters (NSLs)

* NSLs allow the FBI to obtain limited third-party materials in intelligence cases.
* Conference report permits (a) disclosure of National Security Letters to legal counsel, (b) an explicit right to judicial review of such requests for records, and (c) a reviewing court to "modify or set aside" the NSL "if compliance would be unreasonable, oppressive, or otherwise unlawful."
* Permits judicial review of the nondisclosure requirement that attaches with NSLs.
* Requires the Department of Justice Inspector General to conduct two audits of the FBI's use of NSLs.
* Adds annual public reporting on NSLs.

The Conference Report on H.R. 3199 also contains a comprehensive measure to help law enforcement address the national methamphetamine abuse epidemic.

Notice two things. First the Patriot Act is always described as necessary to fight terrorism. The last line mentions measures to address a drug abuse epidemic. More importantly, note that Congressman Ryan is always sure to describe how a provision would apply to investigating suspected terrorists. Yet, so far as I know, there is no language in the Patriot Act to restrict these new powers to just terrorism investigations. Hence the problems I've noted before.