PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
Tuesday Links
- Well, is conservatism “brain dead” after all? David Boaz: “What does conservatism stand for today, other than opposition to President Obama?”
- Why Congress should not renew the PATRIOT Act’s “lone wolf” provision.
- Sex and security in Afghanistan.
- Barack Obama: “The omnipresent omnipresident.“
- Federal spending has doubled in less than a decade. Here’s what we can do about it.
- Podcast: “Unemployment and Stimulus Part II“
If You Can’t Trust a Spy, Who Can You Trust?
As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require. The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.
In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.
But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.
That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:
A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”
So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.
Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”
Weekend Links
- Bush-era surveillance powers are set to expire at the end of this year. Julian Sanchez explores the efforts to revise the PATRIOT Act.
- More on the medical professionals who aided in acts of torture.
- Doug Bandow: Ireland is holding a second referendum on the Lisbon Treaty on Friday. If the Irish say yes, the European Union will be stronger. But will anyone notice?
- The aftermath of “Cash for Clunkers” hits automakers. Looks like it just might have been the “dumbest program ever” after all.
- Podcast: “Three Felonies a Day“
Incredibly Mild PATRIOT Reform too Much for Dems
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.
Supremes to Hear PATRIOT ‘Material Support’ Challenge
As I mentioned in passing in my post yesterday, one of the reforms in Russ Feingold’s JUSTICE Act involves tweaking the USA PATRIOT Act’s definition of “material support” for terrorism to ensure that it doesn’t cover things like humanitarian aid or legal assistance. Today, the Supreme Court agreed to hear a case concerning that very issue:
The key plaintiff in the current appeal is the Humanitarian Law Project, a Los Angeles, California-based non-profit that says its mission is to advocate “for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law.” HLP sought to help the Kurdistan Workers’ Party, a group active in Turkey. Known as PKK, the party was founded in the mid-1970s and has been labeled a terror organization by the United States and the European Union. Its leaders have previously called for militancy to create a separate Kurdish state in parts of Turkey, Iraq, Syria and Iran, where Kurds comprise a population majority. [...]
Another plaintiff is an American physician who wanted to help ethnic Tamils in his native Sri Lanka. Much of the island nation is controlled by the rebel Liberation Tigers of Tamil Eelam, which has also fought for decades to carve an independent state. The government claims the Tamil Tigers have “used suicide bombings and political assassinations in its campaign for independence, killing hundreds of civilians in the process.”
HLP and a group of Tamil doctors say they merely wanted “to provide their expert medical advice on how to address the shortage of medical facilities and trained physicians” in the region but “they are afraid to do so because they fear prosecution for providing material support.”
A federal appeals court agreed with the groups that the statute as written is unconstitutionally vague; the government wants to preserve the current broad language. Arguments won’t take place until early next year, but if you can’t wait for a preview, check out this exchange between David Cole and Paul Rosenzweig on PATRIOT’s material support provision, part of a highly illuminating series of debates on aspects of the law (as originally written) hosted by the American Bar Association.
Contempt of (Secret) Court?
At last week’s House Judiciary Committee hearing on the PATRIOT Act, Rep. Hank Johnson (D-GA) raised an interesting question I haven’t seen discussed much: What happens to someone who willfully violates an order of the highly secretive Foreign Intelligence Surveillance Court? (FISA)
Generally, courts have the right to enforce their own orders by finding those who disobey in contempt, and a line from a rare public version of an opinion issued by the Foreign Intelligence Surveillance Court of Review suggests that the same holds here, noting that a service provider who challenged the (now superseded) Protect America Act “began compliance under threat of civil contempt.” (There is, interestingly, some redacted text immediately following that.) Contempt proceedings normally fall to the court that issued the original order.
A finding of civil contempt will typically result in the incarceration of the offending party until they agree to comply—and on the theory that the person “holds the keys to their own cell,” because they’ll be released as soon as they fall in line, normal due process rules don’t apply here. Of course, there are ways of violating the order that make it impossible to comply after the fact, such as breaching the gag rule that prevents people from disclosing that they’ve been served with orders, or (getting extreme now) destroying the records or “tangible things” sought via a Section 215 order. In those cases, presumably, the only recourse would be criminal contempt, for which you’re supposed to be entitled to a jury trial if the penalty is “serious” and involves more than six months incarceration.
That obviously raises some interesting problems given the extraordinarily secret nature of the FISA Court. In the public version of the opinion I linked above, the name of the petitioner and all identifying details are redacted, even the ruling was released six months after it was handed down, so as to avoid tipping off targets about specific providers that have received orders.
Now, I’m going to take a leap of faith and assume we’re not at the point of “disappearing” folks off our own streets, but it is a puzzle how you’d actually carry out enforcement and penalty, if it ever came to that, consistent with the secrecy demanded in these investigations.
A Preliminary Assessment of PATRIOT Reform Bills
Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post-9/11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.
Read the rest of this post »
PATRIOT Act Provision Used for Drug Cases
The PATRIOT Act contained a number of tools that expanded the power of federal law enforcement officials. One of these, the “sneak and peak” warrant, allows investigators to break into the home or business of the warrant’s target and delay notification of the intrusion until 30 days after the warrant’s expiration. This capability was sold to the American people as a necessary tool to fight terrorism.
In Fiscal Year 2008, federal courts issued 763 “sneak and peak” warrants. Only three were for terrorism cases. Sixty-five percent were drug cases. The report is available here.
Ryan Grim has more on this, including video of Sen. Russ Feingold (D-WI) grilling Assistant Attorney General David Kris.
What You Don’t Know Won’t Hurt You (Surveillance State Edition)
While there are many choice tidbits to relate from Tuesday’s hearings on PATRIOT Act reform at the House Judiciary Committee’s Subcommittee on the Constitution—not least the fellow who had to be wrestled from the room, literally kicking and screaming, after he tried to stand and interrupt with a complaint about alleged FBI violations of his civil rights—I’ll just relate a novel theory of the Fourth Amendment advanced by Rep. Steve King (R-Iowa).
The ACLU’s Mike German, a former FBI agent turned surveillance policy expert, was explaining that it’s hard to know whether expansive surveillance powers are being abused, they’re mostly used in secret and deployed via third-parties like financial institutions and telecoms, who have little incentive to raise much fuss or draw attention to their cooperation. King interrupted to suggest that if we weren’t hearing about constitutional challenges, then it was probably safe to assume there was no Fourth Amendment harm. German tried to reiterate that the people whose privacy interests were directly harmed typically would not know they had ever been targeted.
That, King declared, was precisely the point. Surveillance of which the subject never became aware, he said, could be compared to a “tree falling in the forest” when nobody’s around. In other words, if you aren’t ultimately prosecuted, and don’t even feel subjective distress as a result of the knowledge that your private records or communications have been pored over, then it’s presumably no harm, no foul. If we take this line of thinking literally, sufficiently secret surveillance can never be unconstitutional, which would seem to make King a spiritual cousin of Richard “if the president does it, that means it’s not illegal” Nixon.
A Chance to Fix the PATRIOT Act?
As Tim Lynch noted earlier this week, Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration.
But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.
Consider the much-contested “roving wiretap” provision allowing warrants under the Foreign Intelligence Surveillance Act to cover all the communications devices a target might use without specifying the facilities to be monitored in advance—at least in cases where there are specific facts supporting the belief that a target is likely to take measures to thwart traditional surveillance. The objection to this provision is not that intelligence officers should never be allowed to obtain roving warrants, which also exist in the law governing ordinary law enforcement wiretaps. The issue is that FISA is fairly loosey-goosey about the specification of “targets”—they can be described rather than identified. That flexibility may make some sense in the foreign intel context, but when you combine it with similar flexibility in the specification of the facility to be monitored, you get something that looks a heck of a lot like a general warrant. It’s one thing to say “we have evidence this particular phone line and e-mail account are being used by terrorists, though we don’t know who they are” or “we have evidence this person is a terrorist, but he keeps changing phones.” It’s another—and should not be possible—to mock traditional particularity requirements by obtaining a warrant to tap someone on some line, to be determined. FISA warrants should “rove” over persons or facilities, but never both.
Obama: I Want Those Patriot Act Powers
Yesterday, President Obama’s lawyers informed members of Congress that the president does not want any provision of the Patriot Act to expire. Turns out that Obama wants to have the sweeping powers. This is just the latest example of the cacophony that pervades Washington. When Bush was in the White House, the Dems postured against his runaway spending, his military quagmires, and his constitutional violations. With Obama in the White House, Bush’s most misguided policies either continue or worsen.
Obama is in the news today for his “off-the-record” comment about Kanye West. It would have been better had a reporter overheard Obama saying something like, “John Ashcroft was a terrific Attorney General, but I’ll never admit that publicly.”
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