01.26.11

Leahy Renews Effort To Extend Expiring PATRIOT Act Authorities, Increase Oversight

WASHINGTON (Wednesday, Jan. 26, 2011) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Wednesday introduced legislation to extend expiring provisions authorized by the USA PATRIOT Act.  The provisions are set to expire on February 28.

The USA PATRIOT Act Sunset Extension Act of 2011 mirrors a bipartisan agreement reached in the last Congress to address the expiring authorities and increase oversight.  Leahy led Senate efforts in the 111th Congress to provide an extension through 2013 of the expiring provisions, which include roving wiretaps, the “lone wolf” measure, and Section 215 orders for tangible things, commonly referred to as the “library records” provision.  The USA PATRIOT Act Sunset Extension Act of 2011 also includes several provisions to improve oversight of intelligence-gathering tools, as well as an important sunset on National Security Letters, the use of which has received increased scrutiny in recent years.

“Congress now faces a deadline to take action on the expiring provisions of the USA PATRIOT Act,” said Leahy.  “The USA PATRIOT Act Sunset Extension Act of 2011 will preserve law enforcement and intelligence techniques that are set to expire on February 28, 2011, and extend them to December 2013.  It will also promote transparency and expand privacy and civil liberties safeguards in current law.  It increases judicial oversight of government surveillance powers that capture information on Americans.  This is a package of reforms that all Americans should support.”

A bipartisan majority of the Senate Judiciary Committee voted to send similar legislation to the full Senate in October 2009.   That bill was backed by the Obama administration.  In February 2010, Congress passed a one-year extension of the expiring provisions. 

Last year, at Leahy’s request, Attorney General Eric Holder and Department of Justice Inspector General Glenn Fine agreed to implement several key oversight and civil liberties provisions included in the 2009 bill.  The Leahy-authored legislation introduced on Tuesday will codify these important oversight and reporting requirements, ensuring that each is required by law rather than administrative action.

“The Senate should pass the USA PATRIOT Act Sunset Extension Act of 2011 to codify the steps forward that the Attorney General has taken by implementing parts of the bill administratively,” Leahy said.  “The reforms adopted by this Attorney General could be undone by a future Attorney General with the stroke of a pen.  We must ensure that the progress in accountability and transparency that we achieved last year is not lost simply because it was never written into the statute.”

The legislation will be referred to the Senate Judiciary Committee, and Leahy is expected to list it for Committee consideration soon.  The text of the USA PATRIOT Act Sunset Extension Act of 2011 is available online.  A section-by-section analysis for background purposes follows.

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Statement Of Patrick Leahy (D-Vt.),
Chairman, Senate Committee On The Judiciary

On Introduction Of The USA PATRIOT Act Sunset Extension Act Of 2011

January 26, 2011

Congress now faces a deadline to take action on the expiring provisions of the USA PATRIOT Act.  The bill I introduce today, the USA PATRIOT Act Sunset Extension Act of 2011, will preserve law enforcement techniques that are set to expire on February 28, 2011, and extend them to December 2013.  This bill will also promote transparency and expand privacy and civil liberties safeguards in current law.  It increases judicial oversight of government surveillance powers that capture information on Americans.  This is a package of reforms that all Americans should support.  In fact, a bipartisan group of Senators on the Judiciary Committee voted in favor of it in the last Congress.

In the 111th Congress, the Judiciary Committee reported virtually identical legislation (S.1692RS) with bipartisan support, including the votes of Senators Kyl and Cornyn.  Subsequent negotiations produced a package that was endorsed by the Attorney General and the Director of National Intelligence.  Because Congress did not act on that negotiated package of reforms, but instead passed an extension of the expiring authorities until February 28, 2011, I took steps to see that key portions of the package were implemented administratively by the Department of Justice. 

Even with this progress, enacting the USA PATRIOT Act Sunset Extension Act of 2011 remains imperative for several reasons.  First, surveillance authorities are set to expire in a matter of weeks.  We should not play politics with national security by delaying debate over these issues until the eleventh hour.  I am prepared to extend the sunsets on the three expiring provisions to December 2013, the same sunset date I included in S.1692RS, the bill I introduced in the 111th Congress.  Earlier this month, a bill was introduced in the House of Representatives to extend the expiring provisions only until February 2012, an expiration date chosen deliberately to try to force a debate over national security in an election year.  My bill sets a longer sunset period, which law enforcement strongly favors.   

Second, the Senate should pass the USA PATRIOT Act Sunset Extension Act of 2011 to codify the steps forward that the Attorney General has taken by implementing parts of the bill administratively.  The reforms adopted by this Attorney General could be undone by a future Attorney General with the stroke of a pen.  We must ensure that the progress in accountability and transparency that we achieved last year is not lost simply because it was never written into the statute.

Third, we must enact the parts of the bill that the Attorney General did not or could not adopt because they require a change in the statute.  Chief among these is adding a new sunset on National Security Letters.  Second is repealing the presumption in favor of the government that a judge must honor when he or she reviews an application for a Section 215 order for business records.  The government does not need this presumption.  In fact, the Attorney General endorsed the repeal of the presumption when he expressed his support for the bill in the prior Congress. 

When this bill was considered by the Judiciary Committee in the 111th Congress, it received a bipartisan vote.  Members of the Committee agreed to continue discussions over a handful of provisions to ensure that the final language promoted transparency, protected civil liberties, and aided law enforcement.  I appreciate the votes of Senators Kyl and Cornyn in favor of the reported bill.  In the weeks following the 2009 markup, this bipartisan group of Senators worked closely with me and Senator Feinstein to reach an agreement on language that each Senator supported, and that the Department of Justice endorsed.  In a letter dated November 9, 2009, the Attorney General strongly endorsed the bill and stated unequivocally that the bill did not pose any operational concerns.  That support was reaffirmed in a letter from the Attorney General and the Director of National Intelligence to Senate and House leadership on February 19, 2010.

The bill I introduce today is virtually identical to the product of those negotiations.  It includes only two, noncontroversial updates.  First, the new bill updates the deadlines by which the Department of Justice must issue public reports.  This modification simply reflects the fact that more than a year has passed since the original dates were written into the bill.   Second, the section of the bill that previously required the Department of Justice to establish minimization procedures for National Security Letters is redrafted to reflect that fact that the Department adopted such procedures in October 2010.  Otherwise, this bill is the same in substance as that which was supported by a bipartisan majority of the Senate Judiciary Committee in 2009.

We must move quickly, in advance of the looming deadline, to pass this bipartisan package.  We can preserve the authorities currently in place, which give law enforcement the tools it needs to protect national security.  And we can ensure that Inspectors General, the Congress, and the public maintain vigilant oversight of the government, making sure these authorities are used properly and within Constitutional bounds.  I urge all Senators to support the USA PATRIOT Act Sunset Extension Act of 2011.  I ask unanimous consent that the text of bill be printed in the record. 

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The USA PATRIOT Act Sunset Extension Act of 2011

Sectional Analysis

For Background Purposes

Sec. 1.  Short Title.

The short title of the bill is the “USA PATRIOT Act Sunset Extension Act of 2011.”

Sec. 2. Sunsets. 

This section extends the sunsets on the provisions for “lone wolf,” roving wiretaps, and orders for tangible things from February 28, 2010 to December 31, 2013.  This section establishes a sunset of December 31, 2013, on the use of National Security Letters (NSLs).   This section also makes conforming amendments to FISA and other applicable laws consistent with the sunsets. 

Sec. 3.  Orders for Access to Certain Business Records and Tangible Things. 

This section modifies the standard for obtaining a court order for tangible things under FISA.  Current law requires the government to submit a statement of facts showing reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.  However, current law states that the tangible things sought are presumptively relevant if the government shows that they pertain to (a) a foreign power or an agent of a foreign power, (b) the activities of a suspected agent of a foreign power who is the subject of such an authorized investigation, or (c) an individual in contact with, or known to, an agent of a foreign power who is the subject of such authorized investigation.  This section removes the presumption of relevance described above.  It requires the government to provide a statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that the tangible things sought are relevant.  This ensures that the government is presenting a thorough statement of facts to the court and strengthens judicial oversight.

To obtain library circulation records or patron lists, the government must meet a higher standard.  That standard is a statement of facts showing reasonable grounds to believe the tangible things are relevant to an authorized investigation and pertain to (a) an agent of a foreign power, (b) the activities of a suspected agent, or (c) an individual in contact with or known to a suspected agent of foreign power.

This section also requires court review of minimization procedures, but ensures that the minimization procedures are not included in the court order that is transmitted to the recipient of the Section 215 order.

This section provides transition procedures to ensure that any Section 215 order in effect at the time of the enactment of this Act remains in effect until the expiration of that order.

Sec. 4.  Orders for Pen Registers and Trap and Trace Devices (PR/TT) for Foreign Intelligence Purposes.

Under current law, in order to obtain a FISA PR/TT, the government must certify that the information sought is foreign intelligence information or is relevant to an investigation to protect against terrorism.  This section modifies the standard for obtaining a PR/TT to require the government to provide 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.  This ensures that the government is presenting a thorough statement of facts to the court and strengthens judicial oversight.

This section also requires minimization procedures, which are not required under current law, and makes those procedures subject to court review.  It states that, under exceptional circumstances where minimization procedures apply, those procedures are not included in the court order that is transmitted to the recipient of the PR/TT order. 

This section provides transition and extension procedures to ensure that any PR/TT order in effect at the time of the enactment of this Act remains in effect until the expiration of that order.

Sec. 5.  Limitations on Disclosure of National Security Letters. 

Under current law, the government may prohibit disclosure of the receipt of an NSL where a high level official certifies that disclosure may result in danger to the national security, interference with an investigation, or danger to the life or safety of a person. 

This section allows the recipient of an NSL nondisclosure order to challenge the nondisclosure at any time by notifying the government of a desire not to comply.  Section 6 (below) details the process for doing so. 

Sec. 6.  Judicial Review of FISA Orders and National Security Letters. 

FISA Orders for Tangible Things:  This section allows the recipient of a Section 215 order for tangible things to challenge the order itself and any nondisclosure order associated with it.  Current law requires a recipient to wait a year before challenging a nondisclosure order in court.  This section repeals that one-year mandated delay.  It also repeals a provision added to the law in 2006 stating that a conclusive presumption in favor of the government shall apply where a high level official certifies that disclosure of the order for tangible things would endanger national security or interfere with diplomatic relations. 

Judicial Review of NSL nondisclosure orders:  This section corrects the constitutional defects in the issuance of nondisclosure orders on NSLs as found by the Second Circuit Court of Appeals in Doe v. Mukasey, 07-4943-CV (December 15, 2008), and adopts the concepts suggested by that court for a constitutionally sound process.  Id. at pp. 39-40.  The bill allows the recipient of an NSL with a nondisclosure order to notify the government at any time that it wishes to challenge the nondisclosure order. The government then has 30 days to seek a court order in Federal District Court to compel compliance with the nondisclosure order.  The court has authority to set the terms of a nondisclosure order as appropriate to the circumstances, but must afford substantial weight to the government’s argument in favor of nondisclosure.  If the government makes the required showing of need, the court shall issue the nondisclosure order.  The government must notify any entity that challenges a nondisclosure order when the need for nondisclosure is terminated.  The government’s application for a National Security Letter (NSL) nondisclosure order may be filed in the jurisdiction where the recipient’s business is located.  This option will ease the burden on the recipient in challenging the nondisclosure order.  Requests for nondisclosure orders should be filed in the appropriate “judicial” district.

Minimization.  The bill requires FISA court approval of minimization procedures for 215 orders for tangible things, similar to the Court approval required for other FISA authorities such as wiretaps, physical searches, and pen register and trap and trace devices.

Sec. 7.  Certification for Access to Telephone Toll and Transactional Records. 

This section codifies current FBI practice in issuing an NSL, and augments oversight and transparency.  Current law requires only that an official certify that the information requested in the NSL is relevant to, or sought for, an authorized investigation to protect against international terrorism or clandestine intelligence activities, or for a law enforcement investigation, counterintelligence inquiry, or security determination. 

This section adds a requirement that the FBI retain a statement of specific facts showing that the information sought is relevant to such an authorized investigation.  This statement of specific facts will not be included in the NSL itself, but will be available for internal review and Office of Inspector General audits.

Sec. 8.  Public Reporting on National Security Letters. 

This section requires reporting of aggregate numbers based upon the total number of all NSLs issued each year, as opposed to by individual NSL, and ensures that the FBI can keep an accurate record of the information it must disclose by allowing it to report both on persons who are the subject of an authorized national security investigation and on individuals who have been in contact with or otherwise directly linked to the subject of an authorized national security investigation.

Sec. 9.  Public Reporting on the Foreign Intelligence Surveillance Act of 1978. 

This section requires that the government produce an annual unclassified report on how the authorities under FISA are used, including their impact on the privacy of United States persons.

Sec. 10.  Audits. 

This section requires the DOJ Office of Inspector General to conduct audits of the use of three surveillance tools:  (1) orders for tangible things under Section 215 of the 2001 USA PATRIOT Act, or Section 501 of FISA; (2) pen registers and trap and trace devices under Section 402 of FISA; and (3) the use of NSLs. The audits will cover the years 2007 through 2011.   The scope of such audits includes a comprehensive analysis of the effectiveness and use of the investigative authorities provided to the government, including any improper or illegal use of such authorities.  This section also requires the Inspectors General of the Intelligence Community to submit separate reports that also review these three provisions. 

Sec. 11.  Delayed Notice Search Warrants. 

Current law requires notification of a delayed notice search warrant within 30 days.  This section requires notification of a delayed notice search warrant within 7 days, or a longer period if justified. 

Sec. 12.  Procedures. 

Unlike PR/TT and Section 215 records, current law does not require the Department of Justice to establish minimization procedures for information obtained through NSLs.  However, after Congress required a feasibility study, and the Office of Inspector General found past misuse and abuse of the NSL authority, the Department of Justice agreed to establish procedures for the collection, use, and storage of information obtained in response to a National Security Letters.  These procedures were adopted October 1, 2010.  This section requires the Attorney General to periodically review and revise, if necessary, the procedures, giving consideration to the privacy interests of individuals and the need to protect national security.  It also requires the Department of Justice to notify relevant committees of Congress of any significant changes to the procedures. 

Sec. 13.  Severability

This section includes a severability clause that will ensure that in the event any part of the bill, or any amendment to the bill, is found to be unconstitutional the remainder of the bill will not be affected.                            

Sec. 14.  Offset. 

This section includes a $5,000,000 offset from the Department of Justice Asset Forfeiture Fund for any direct spending that could be incurred by the provisions of the bill. 

Sec. 15.   Effective Date. 

This section includes an effective date of 120 days from the date of enactment for the statutory revisions made by this legislation to take effect.  This period of time will provide the government an appropriate amount of time to implement the new procedures required by the legislation. 

 

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