10.01.09

Leahy Applauds Progress On Patriot Act Reauthorization

WASHINGTON (Thursday, October 1, 2009) – Legislation to reauthorize expiring intelligence gathering provisions received a boost Thursday when Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) unveiled legislative language supported by several key senators, including Senator Dianne Feinstein (D-Calif.), chair of the Senate Select Committee on Intelligence, and Committee members Ben Cardin (D-Md.), Sheldon Whitehouse (D-R.I.), Amy Klobuchar (D-Minn.) and Ted Kaufman (D-Del.).

The Judiciary Committee is considering legislation sponsored by Leahy and Committee members Ted Kaufman and Ben Cardin to reauthorize expiring provisions of the USA PATRIOT Act.  The USA PATRIOT Act Sunset Extension Act was introduced on September 22.  Three authorizations included in the Patriot Act are set to expire at the end of the year: authorizations for roving wiretaps, the “lone wolf” measure, and Section 215 orders for tangible things, commonly referred to as the “library records” provision.  The Patriot Act was first enacted in October 2001, and was reauthorized in 2006.

“Our bill updates checks and balances by increasing judicial review of the use of government powers that capture information on U.S. citizens,” said Leahy.  “It also augments congressional oversight.   All of us are mindful that threats to Americans’ safety are real and continuing. Our bill will provide the tools that are being used to protect us while increasing the protections of our vital constitutional rights, as well.”

The substitute amendment adopted Thursday preserves several oversight provisions in the introduced bill, including sunsets and audits of National Security Letters (NSLs), and reporting requirements to allow Congress to monitor the use of authorities.  The substitute also preserves new court approved minimization procedures for Section 215 orders for business records or tangible things to ensure stronger privacy protections.  Information about additional amendments that were considered during the business meeting Thursday is available online.

The Leahy-Feinstein-Cardin-Whitehouse-Klobuchar-Kaufman substitute amendment adopted Thursday makes several modifications to the USA PATRIOT Act Sunset Extension Act, including:

Sunsets

  • Modifies the sunset on National Security Letters to make clear that NSL authority will not expire on December 31, 2013, if not reauthorized, but will revert to the pre-2001Patriot Act law on NSLs.

Standard for Issuing a Section 215 Order for Business Records or Tangible Things

  • Modifies the standard in the introduced bill by eliminating the requirement that the government tie the investigation to one of three categories of a foreign power, and instead requires a statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that the tangible things are relevant to an authorized investigation to obtain foreign intelligence information.
  • Preserves the higher standard contained in S. 1692 as introduced for highly sensitive library records.
  • Preserves new court approved minimization procedures and audits to ensure stronger privacy protections and a higher level of oversight.

Standard for Pen Register and Trap and Trace Devices

  • Modifies the standard in the introduced bill by eliminating the requirement that the government tie the investigation to one of three categories of a foreign power and instead requires a statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that the information likely to be obtained is relevant to an authorized investigation to obtain foreign intelligence information.
  • Preserves new court approved minimization procedures and audits to ensure stronger privacy protections and a higher level of oversight.

Standard for Issuance of NSLs and Challenges to NSL Nondisclosure Orders

  • Neither the bill nor the substitute changed the standard for issuance of an NSL.
  • Strikes the provision that established a one-year renewable limit on the term of a nondisclosure order issued with an NSL.
  • Strengthens an NSL recipient’s ability to challenge a nondisclosure order in Federal Court by allowing the recipient to challenge it at any time, and gives discretion to the court to set the terms of a nondisclosure order as appropriate to the circumstances.
  • Preserves the new audit for NSLs.
  • Requires a written statement of specific and articulable facts proving relevance before the government can issue an NSL.

Judicial Review of Section 215 Nondisclosure Orders

  • Strikes the one-year time limit before a recipient can challenge a Section 215 nondisclosure (gag) order.
  • Strikes that conclusive presumption in favor of the government on nondisclosure orders.

The Committee will continue its consideration of the USA PATRIOT Act Sunset Extension Act at a business meeting on Thursday, October 8.

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Opening Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Executive Business Meeting
October 1, 2009

This morning we have the opportunity to make progress.  Last week we demonstrated that we can do that when we reported five presidential nominations and the Satellite Television Modernization Act.  That bipartisan bill was reported without objection just nine days after its introduction.  That is a measure of what we can do when we work together. The statutory licenses underlying satellite television viewing are expiring this year and this Committee recognized its responsibility to act, and we did.

Likewise, the matter we take up today has a short deadline and expiring provisions. These are provisions of the USA Patriot Act that the FBI Director and the Assistant Attorney General for National Security told this Committee are important tools.  This is a matter with which we have been concerned all year.  In March, I sent Attorney General Holder a letter requesting the administration’s views on these expiring provisions.  When I recently received a response from the Justice Department urging us to extend the expiring authorities, I immediately scheduled a hearing.  I joined with Senator Kaufman and Senator Cardin, and nine days ago we introduced the USA PATRIOT Act Sunset Extension Act of 2009.

Our bill draws from the efforts Senator Specter and I have made over the years, and those of Senator Feingold and Senator Durbin.  I was pleased that Senator Feinstein’s initial reaction to the bill was so favorable, and I have worked with her and her staff on both this Committee and the Select Committee on Intelligence, which she chairs, to accommodate her concerns.   Today Senator Feinstein and I have circulated a substitute that incorporates those modifications and I welcome her cosponsorship of this important bill.

Our bill updates checks and balances by increasing judicial review of the use of Government powers that capture information on U.S. citizens.  It also augments congressional oversight.   In the recent Justice Department letter to me, the administration noted that Congress may “propose modifications to provide additional protection for the privacy of law abiding Americans” and that is what we have done.  I agree with President Obama that checks and balances, and accountability, are important.

The recent letter from the Justice Department also noted that:  “The oversight provided since 2001 and the specific oversight provisions that added to the statute in 2006 have helped to ensure the authority is being used as intended.”  I agree.  In addition, at our recent oversight hearing of the FBI, Director Mueller acknowledged the value of oversight and stated his support for “periodic outside review” of their utilization of these authorities.  We were reminded just last week at our hearing about these matters how effective the audits by Inspector General Fine have been.  Our bill contains provisions building on those successes.

Security and liberty are both essential in our free society.  Benjamin Franklin wrote:  “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”  I have been mindful of this since the devastating attacks of September 11, and each time we have considered the USA PATRIOT Act.  The American people of today and those of tomorrow – our children and grandchildren -- depend on us to do our best to ensure both security and the preservation of our essential liberties.

The bill we consider today, cosponsored from the outset by Senators Cardin and Kaufman and which today I hope has growing support, will extend the authorization of the three expiring Patriot Act provisions.  We also provide for increased Government accountability requiring audits and reviews of how these vast authorities are being used.

In addition, we propose that, given their extensive use, abuse and intrusiveness, we include a sunset for National Security Letters (NSLs).  Senator Specter and I introduced a bill in 2006 to impose a sunset on NSLs.  This sunset provision, combined with a comprehensive audit by the Inspector General, will help to hold the FBI accountable in its use of this authority.  This bill would also impose more judicial oversight on the issuance of NSLs.    

I have long been concerned with issuance and oversight of NSLs.  National Security Letters are, in effect, a form of administrative subpoena.  They do not require approval by a court, grand jury, or prosecutor.  They are issued in secret, with recipients silenced, under penalty of law.  Yet NSLs allow the Government to collect sensitive information, such as personal financial records.  As Congress expanded the NSL authority in recent years, I raised concerns about how the FBI handles the information it collects on Americans.  I noted that, with no real limits imposed by Congress, the FBI could store this information electronically and use it for large-scale, data-mining operations.  We now know that the NSL authority was significantly misused.  In 2008, the Department of Justice Inspector General issued a report on the FBI’s use of NSLs revealing serious over-collection of information and abuse of the NSL authority.

This bill recommends improved standards for 215 orders and the higher standard I have long supported for library records.  It also establishes more meaningful judicial review of section 215 orders.  It repeals a provision added to the law in 2006 stating that a conclusive presumption in favor of the Government shall apply. The prior restraints on meaningful judicial review were unfair, unjustified, and unwise.   

This bill will strengthen court oversight by requiring court oversight of minimization procedures when information concerning a U.S. person is acquired, retained, or disseminated.  This is another common sense modification to the law and was crafted in consultation with Senators Feingold and Durbin.

Over the last few weeks, as we have been heading toward this day, the FBI has made a number of arrests in Springfield, Illinois; Dallas, Texas; and in Colorado and New York.  All of us are mindful that the threats to Americans’ safety are real and continuing.  Our bill will provide the tools that are being used to protect us while increasing the protections of our vital constitutional rights, as well.

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