Initial reactions to the tentative deal on the Patriot Act have been predictably mixed. Orin Kerr, a former prosecutor and expert on electronic surveillance law, has called it a “win-win bill”, while correctly stating it is more a win for the Administration. http://volokh.com/posts/1132196140.shtm. The ACLU says: “Lawmakers have let the administration take us from bad to worse.”
Not surprisingly, given my past views, I’m in between these two positions. But I’m closer to the ACLU at this point, especially if two changes don’t happen before the deal is final.
Change 1: Shorten the sunset from 7 years to 4 years. This should be a no-brainer. The Senate bill had a sunset of 4 years. The House bill, true, had a sunset of 10 years, but the House voted just last week overwhelmingly in favor of a 4 year sunset. Let democracy work for once – the two chambers both have voted for 4 years, and 4 years it should be.
This change is far more important than the three provisions that will technically sunset in 2012 under the proposed deal. We have seen this year that the process of having a sunset was the single most important element in Patriot Act reform. Without the sunset, the Department of Justice could have continued indefinitely to stonewall about its actions and refuse to make any changes to the law. With the sunset, we had over a dozen hearings this year on the Patriot Act that finally let us learn key facts about its operation. In addition, we have six or eight modest improvements in the law that otherwise simply would not have existed. The sunset remains the only cure for DOJ saying “the Patriot Act is perfect and change it only to give us expanded powers.”
Change 2: Use the Senate language that links searches to actual suspects. One of the biggest legal changes in the 2001 Patriot Act has turned out to be the application of secret searches to the records of people who are not even suspected of criminal or terrorist activity. Previously, the government had to show that the records sought were those of “an agent of a foreign power.”
Section 215 of the Patriot Act authorized a judge-approved order for any records if the database involved contained records that were “relevant to an ongoing investigation.” Section 909 of the Patriot expanded National Security Letters (issued by an FBI agent without any judicial role) under that same relevance standard. A recent report by the Washington Post has told us that this NSL authority has exploded in use, from a couple of hundred a year to 30,000 a year now. (NSLs apply essentially to phone, email, and financial records.)
The Senate bill made noticeable improvements in this law. At least for U.S. persons, it now requires a statement of facts showing reasonable grounds for the order, and not merely an assertion that the order is needed. Next, those facts would show the link to a suspect – either the suspected agent of a foreign power or “an individual in contact with, or known to, a suspected agent of a foreign power.”
I personally think the case is overwhelming that these secret search powers should only be for the suspects and persons linked to the suspects. I would apply the Senate’s requirements to Section 215 and to NSLs. There may still be time to do so.
The proposed bill has a few things to praise and numerous others to criticize. These two changes, though, have great support already from Members of Congress. They can and should be made before the deal becomes final.