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Congressman Sensenbrenner Is Wrong on Patriot Act Records

The reasoning was straightforward: protecting the nation – especially after the mass-murder of nearly 3000 Americans on 9/11 – was a higher executive branch responsibility than, say, prosecuting a drug ring or a mafia gambling operation. If the executive branch did not need to prove anything to a judge to compel business records in connection with run-of-the-mill crime, it made no sense to impose a higher burden in connection with a more important responsibility.

Progressives and libertarians would not agree. They were not happy about the latitude federal law gives criminal investigators, and the Patriot Act debate was their chance to fight back, to sow into national security law the seeds of more judicial oversight. Accomplishing that objective would enable them, later on, to relitigate the battles they’d lost over the years regarding broad investigative authority in the arena of law-enforcement. (Note, for example, that Sen. Rand Paul has proposed legislation that would not only slash the NSA program but cripple law enforcement by imposing unprecedented burdens on the compulsion of third-party phone records. I write about that here.)

This tangle resulted in a compromise: To get business records under the Patriot Act, the FBI would not have to prove anything to the court; as with a pen-register, however, the executive branch would have to make solemn representations that the information was sought for a legitimate purpose – viz., that there were reasonable grounds to believe the records sought were relevant to a national security investigation (i.e., either to obtain foreign intelligence or protect against terrorism or foreign spying).

Nevertheless, Rep. Sensenbrenner writes:

To obtain a business records order like the one the administration obtained, the Patriot Act requires the government to prove to a special federal court, known as a [Foreign Intelligence Surveillance Act (FISA)] court, that it is complying with specific guidelines set by the attorney general and that the information sought is relevant to an authorized investigation. Intentionally targeting US citizens is prohibited.

This is wrong in every particular. The government is not required to prove anything to the FISA court. This was the crux of the debate. If the government had to prove anything to the FISA court, that would mean the FISA court, rather than the executive branch, would have the final say on who could be investigated and what records could be scrutinized.

The government – as the statute says in language that was argued over endlessly – must provide the court with “a statement of facts showing there are reasonable grounds to believe that [the records sought] are relevant to an authorized investigation.” But the statute does not empower the court to second-guess that statement of facts. If the bill had granted this kind of judicial intrusion into executive responsibilities, the national security right would not have supported it, and it would never have been enacted. Instead, the statute provides that if the government makes the stipulated representations, the court must sign the order.

Furthermore, the government need not “prove” to the FISA court “that it is complying with specific guidelines set by the attorney general,” as Sensenbrenner asserts. Instead, guidelines from the attorney general regarding the retention and dissemination of the information sought must be set forth in the application. The executive branch must follow them, and there is no reason to believe agents are not doing so. But there is no requirement to prove to the FISA court that the government is complying. Again, it is a solemn representation, not a proof requirement.

Finally, it is simply not the case, as Sensenbrenner claims, that “intentionally targeting US citizens is prohibited.” The statute provides that information about American citizens may not be targeted if the purpose of the investigation is solely “to obtain foreign intelligence” – and that’s common sense. But, as noted above, the statute also pertains to investigations “to protect against international terrorism or clandestine intelligence activities.” There is no prohibition against targeting American citizens on these scores – which also make sense because, as we know historically, some American citizens have been deeply involved in international terrorism and in helping foreign spy services work against the United States.

Indeed, the statute expressly assumes American citizens will be implicated in investigations. It states: “An investigation … shall … not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States” (emphasis added). That is, the government may not target an American merely for political dissent (as, for example, the Obama administration has done in the IRS scandal). But if, say, an investigation involves international terrorism and there is reason, wholly apart from political dissent, to believe an American’s phone records would be relevant, there is no prohibition against seeking an American’s phone records.

I believe Congressman Sensenbrenner is confusing what he may consider to be – and what may in fact be – an overzealous but entirely legal use of the Patriot Act with a violation of the Patriot Act. To compare, again, the awesome powers of criminal investigators: when I was a prosecutor, I could have compelled the production of phone records of countless innocent people. If I did not have a good reason for doing so, it would have been an abuse of my power. But it would not have been a violation of laws that, quite intentionally, allow the executive branch to compel non-privileged records with virtually no oversight. It would mean we’d need a new, more responsible prosecutor, not new laws.

To the contrary, the Patriot Act provides a comprehensive regimen of internal Justice Department monitoring, judicial oversight, and congressional oversight. It is not true, as Rep. Sensenbrenner contends, that collecting records is the equivalent of spying. Under the procedures in place, the government may retain the records it collects, but it may not scrutinize the data therein unless it goes to the FISA court and demonstrates reasonable suspicion, based on specific facts, of terrorist activities.

So yes, the government is permitted to retain phone records for national security purposes with a fairly minimal burden – although a higher one than the government must meet in investigating ordinary and comparatively trivial crime. But it cannot “spy” without satisfying a court that there are grounds to do so – something it never has to do with business records gathered in criminal investigations.

And, unlike the case in routine criminal investigations, there may very well be a valid reason to collect millions of phone records for national security purposes. It may well be that only by accessing the universe of phone traffic are analysts capable of discerning the complex communication patterns of terrorists who are trained in counterintelligence. That has yet to be established, and it may well be that trying to establish it publicly would educate our enemies in how to avoid detection.

Consequently, we may be at a crossroads. At a time when trust in government is understandably low, we are being asked to trust that government is not using the records it retains to spy on us; that both parties and every branch of government are involved in the process to ensure that such spying does not happen; and that government has a legitimate, life-saving national security purpose for the massive data collection that has taken place over many years.

Whether that trust is warranted is a serious question, and it deserves serious consideration. The inquiry is not advanced by overheated, inaccurate allegations of lawlessness.