At hearings last week on reform and renewal of parts of the PATRIOT Act, Sen. Al Franken (D‑MN) made a big show of reading the full text of the Fourth Amendment to Assistant Attorney General David Kris (who, just going out on a limb, had probably seen it). On Thursday, a notably less vocal Franken joined his a bipartisan majority of his Senate Judiciary Committee colleagues in a lopsided vote that torpedoed even the most modest of proposals to introduce elementary civil liberties safeguards into the USA PATRIOT Act.
As I noted in a post earlier this week, there were two main reform proposals on the table: An impressively comprehensive and careful one floated by Sen. Russ Feingold (D‑WI), and a much more limited one from Sen. Patrick Leahy (D‑VT) that nevertheless would have tightened the rules to require that so-called “pen/trap” surveillance and broad “section 215” orders for private records only target individuals with at least some plausible connection to terrorists or terrorism. Some of us had nourished a foolish hope that the Committee might see fit to incorporate some of the most important elements of Feingold’s reform into the Leahy bill. Instead, Sen. Dianne Feinstein (D‑CA) swooped in at the last minute with substitute legislation that stripped away even the mild but important limitations that were already there. There’s a single bizarre exception for records obtained from libraries, presumably because librarians have long been at the forefront of opposition to PATRIOT and section 215 authority, where the higher standard obtains. So if you surf the Web or check out books from your public library, your activities enjoy greater privacy protection than when you surf the web or order books off Amazon from your home or workplace.
The rationale for this was the fear, articulated by Feinstein, that a higher standard might interfere with an important “ongoing investigation.” First, it should be a little distressing if the current investigative methods in use would be utterly disrupted without the ability to broadly acquire records that don’t pertain to terrorists, nor to suspected activities of terrorists, nor even to people directly in contact with suspected terrorists. Second, even granting that it might be better not to change the rules for investigations currently underway, this explanation doesn’t hold up to scrutiny. The authority under 215 to compel the production of records or other “tangible things” (a blood or DNA sample from your doctor’s office, say) has always had a built-in expiration or “sunset” date, which all the proposals under consideration would have extended for another four years. But the sunset provisions have always included a grandfather clause, allowing the new PATRIOT powers and standards to remain in place for ongoing investigations, even as they expired for new investigations. There’s no reason a similar clause couldn’t have been added to Leahy’s reforms in order to avoid disrupting searches already underway. Finally, Marcy Wheeler of Firedoglake has a guess as to what that “ongoing investigation” entailed, and without going into great detail, it sounds like a sufficiently narrowly tailored order probably should have been available for the kind of investigation Wheeler envisions even under the more stringent standard Leahy had proposed. Back in 2005, incidentally, those slightly stricter standards had won the unanimous acceptance of the Judiciary Committee—so apparent we’ve achieved Change in the level of concern for civil liberties, albeit maybe not the sort for which some of us had Hoped.
But wait, it gets worse.
The standard established in the Feinstein substitute is, at least arguably, even less protective than current law. Thanks to some anemic checks imposed under the 2005 PATRIOT reauthorization, investigators at least have to present a judge with a statement of facts “showing reasonable grounds to believe” that the records or pen/trap surveillance sought will be “relevant” to an investigation, with records pertaining to suspected terrorists or their activities or their contacts being “presumptively relevant.” Feinstein’s bill scraps that language and requires “a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant” that the information sought will be “relevant,” though it also removes the language specifying categories of “presumptively relevant” records. So why bother swapping out the “reasonable grounds to believe” language for this awkward, doubly-reflexive formulation about the applicant’s belief? One assumes it has to make some difference or they wouldn’t have bothered, and it sounds rather like an attempt to eliminate any hint of an objective standard of review (are the grounds objectively reasonable?) in favor of something like a “good faith” test that focuses on the investigator’s subjective state of mind.
None of this is final yet: The Judiciary Committee will meet next Thursday, consider potential amendments for a maximum of one hour, and then vote on the final language to send to the full Senate for approval. But the clear momentum at present is against any kind of meaningful change to the sweeping surveillance powers Congress has granted the government in recent years.
