Even as the government increasingly comes under fire from civil libertarians for using Patriot Act provisions to seek personal information without probable cause, some lawmakers are working to expand those powers.
In recent months, signs of public outrage have begun to surface over the FBI’s use of National Security Letters (NSLs) to secretly demand information from business and public agencies about their clientele. Under one of the most controversial section of the USA PATRIOT Act, third party record holders who receive NSLs requesting information about their patrons are forbidden from telling anyone about the Letter.
Now some lawmakers in the US House of Representatives are considering a bill that would designate concrete penalties for people who refuse to comply with NSL requests for information or who tell anyone that federal agents requested personal information about their clients.
Additionally, the bill would grant the FBI greater power to secretly monitor non-citizens and would allow the use of secretly gathered evidence in immigration hearing without giving defendants the opportunity to legally challenge the information.
The Anti-Terrorism Intelligence Tools Improvement Act of 2003 (HR 3179) was introduced in the House last September and is currently in the House Judiciary Committee. The bill’s opponents fear that one of the bill’s sponsors, Representative Porter Goss (R-FL), who also chairs the House Intelligence Committee will fold the provisions of HR 3179 into the annual intelligence authorization bill, making it difficult for lawmakers to oppose.
The legislation calls for a one-year maximum jail sentence for anyone who knowingly violates the nondisclosure provision of the USA PATRIOT Act. Anyone who violates the rule "with the intent to obstruct an investigation or judicial proceeding" would get a maximum sentence of five years under the legislation. The bill also gives law enforcement the ability to enlist the judicial system’s help in forcing people to comply with the National Security Letter information requests.
"There is no reason for this legislation," Chip Pitts, head of the Bill of Rights Defense Committee of Dallas and a former constitutional law professor told Wired News. "Given the expanse of powers and secrecy already granted in the Patriot Act, and given the unclear security benefits and possible security detriments of that legislation, why do we need a further amendment of the law to grant more powers to the government?"
But proponents of the bill do see a need for the provisions of the HR 3179 because without it, they say, the nondisclosure provision on the Patriot Act lacks teeth.
"Right now you can’t disclose if you receive a National Security Letter," spokesperson for the House Judiciary Committee Jeff Lungren told Wired News. "But if you do disclose it, there is no penalty for that. There’s [also] no stick to deal with a person that refuses to comply with a national security letter."
Wired reports that proponents of the legislation accuse civil libertarians of overreacting to the legislation. They say the purpose of the bill is to "plug a few gaps" in the Patriot Act by providing for clear penalties in areas that were left ambiguous.
But to Jim Dempsey, director of the Center for Democracy and Technology (CDT), those gaps are important because they give companies a limited ability to negotiate with authorities. Dempsey told Wired that if federal agents make a request that a company finds too broad, they can sometimes resist and force the FBI to narrow their search. Dempsey’s group, a non-profit public policy organization that advocates democracy and civil liberties "in the digital age," has been closely watching HR 3179 and is encouraging people to contact their congressional representatives about the legislation.
Civil liberties advocates argue that the gag rule silences members of the public from challenging the legitimacy of government requests for private information. They further accuse the government, under cover of the secrecy clause, of using the Letters to bypass probable cause requirements and obtain information about crimes unrelated to terrorism investigations.
By imposing jail terms on people who fail to comply with National Security Letters, even when noncompliance comes from legitimate concerns over violation of privacy or government abuse of authority, civil libertarians say HR 3179 would further concentrate power in the hands of government agents and narrow avenues of recourse that exist.
The proposed legislation would also further amend the Foreign Intelligence Surveillance Act of 1978 (FISA), which governs the procedures federal agents must follow when seeking judicial permission to electronically monitor or physically search people suspected of engaging in espionage or international terrorism on behalf of a foreign power.
The Patriot Act changed some provisions of FISA to give federal agents greater domestic surveillance powers, and the use of FISA warrants to investigate suspected terrorists in the United States has worried many civil rights groups. They say the expansions under the Patriot Act allow federal agents to spy on people’s free speech and political activities without having to show probable cause.
HR 3179 would expand the FISA definition of "agent of a foreign power" to include one who "engages in international terrorism or activities in preparation therefor," but who does not necessarily work with a foreign government for terrorist organization.
"Because there is no accepted definition of international terrorism, and because they’re eliminating the need for someone to be acting on behalf of a foreign government, you’re relying on subjective and perhaps arbitrary or politically motivated definitions" when determining who can be investigated under FISA provisions, Pitts told Wired.
In a letter addressed to the House Judiciary Committee, a coalition of almost 80 organizations, expressed their concerns with HR 3179.
"Congress originally approved the FISA with the explicit requirement that it would only be used against individuals acting on behalf of foreign governments or groups," the letter reads. "This connection to a foreign power is essential to the constitutionality of FISA, which contains lower probable cause standards than are required in criminal cases."
A final provision of HR 3179 would allow for the use of evidence gathered with FISA warrants to be used in immigration cases without providing notice and an opportunity for the accused to challenge the evidence as is currently mandated under FISA.
In a letter to Congress urging members to oppose the Act, the ACLU says this portion of the bill would eliminate "important judicial safeguards" currently in place to assure that evidence used against immigrants in court was obtained legally.
At a May 18, 2004 hearing about the proposed legislation, Thomas J. Harrington, the deputy assistant director of the counterterrorism division of the FBI, defended HR 3179. "It contains advantageous reforms which the FBI believes are necessary to assist us in gathering the intelligence that will prevent future terrorist attacks," Harrington told the Judiciary Committee.
Nevertheless, a broad range of civil liberties groups — including progressives and conservatives — hold deep misgivings about granting the government increased investigative and prosecutorial powers.
They complain that even while provisions of the Patriot Act are being debated, lawmakers are attempting to secretly pass legislation that further erodes the liberties of US citizens and residents.
According to Wired and The American Spectator, HR 3179 is just one of several pieces of legislation concerning the government’s powers to obtain information about citizens and residents of the US being slipped through Congress without proper debate. The Spectator reports that it was only after massive opposition from civil libertarians that the House Judiciary Committee agreed to hold a hearing on the Anti-Terrorism Intelligence Tools Improvement Act.
Even after the hearing, the Center for Democracy and Technology worries that Rep. Goss will attempt to bypass House debate on the measure by attaching it to the annual intelligence authorization bill, which according to the CDT, is debated "behind closed doors." In an action alert about HR 3179, the CDT says that, since the intelligence authorization bill contains provisions seen as important by lawmakers, it is very difficult for House members to vote against the bill, even when it contains provisions they oppose.
According to Wired, HR 3179 is just one of six bills derived from Justice Department draft legislation known as Patriot II. When the details of Patriot II were leaked to the press, the Justice Department was forced to shelve the proposal due to massive public outcry. Nevertheless, provisions of the Patriot II proposal have been showing up in Congress either as individual bills or attached to other bills as amendments and riders. In fact, the Spectator reports that last year, one of those measures was passed with little debate after the House Intelligence Committee attached it to the annual intelligence authorization bill.
"Any expansion of the PATRIOT Act is premature at this point," wrote the CDT. "Congress has not finished its oversight work to determine how the new powers in the PATRIOT Act have been used and whether they were needed to begin with." The CDT argues that before making further changes to surveillance laws, Congress "should include oversight mechanisms and judicial checks and balances."