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4/6. The House Judiciary
Committee (HJC) held a hearing on the USA PATRIOT Act. The sole witness
was Attorney General Alberto
Gonzales.
AG Gonzales stated that he is "open to suggestions for clarifying and
strengthening" some of the provisions of the USA PATRIOT Act. Until recently,
the Bush administration's position was that it sought extension of all sunsetting
provisions of the Act, without modification.
Section 215, which pertains to the Foreign Intelligence Surveillance Act (FISA)
and business records (including library records), was the most discussed section
of the PATRIOT Act at this hearing.
Committee Democrats criticized the Department
of Justice (DOJ) for failing to provide the information to the HJC and its
members that would enable them to engage in meaningful oversight.
Also, while many of the sections of the PATRIOT Act affect governmental
powers to conduct searches and seizures of electronic records, and to conduct
electronic surveillance, and several sections extend existing powers to new
information technologies, there was very little discussion at the House hearing
about new information and communications technologies. However, several
Democrats discussed data mining.
Hearing Schedules. Rep.
James Sensenbrenner (R-WI), the Chairman of the HJC, presided. He announced
that the HJC, and its subcommittees, will hold a series of eight follow-up
hearings on the PATRIOT Act in the months of April and May.
The HJC's Subcommittee on Crime, Terrorism, and Homeland Security will hold a
hearing titled "Oversight Hearing of the Department of Justice to Examine the Use
of Section 218 of the USA PATRIOT Act" on Thursday, April 14 at 10:00 AM. This
is the section that changed the standard for issuance of a FISA order.
Also, on April 5, the Senate Judiciary
Committee held a hearing on the USA PATRIOT Act at which AG Gonzales and FBI
Director Robert Mueller testified. Sen. Arlen
Specter (R-PA), the Chairman of the SJC, announced that the SJC will hold
two follow-up hearings. The SJC will hold a closed hearing titled "Oversight
of the USA PATRIOT Act" on Tuesday, April 12. It will also hold a public
hearing for academic witnesses in May. See,
story
titled "Senate Judiciary Committee Holds Hearing on
PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,110, April 6, 2005.
The House and Senate must act in the present session because sixteen sections
of Title II of the PATRIOT Act are scheduled to expire on December 31, 2005.
Data Mining. Several Democrats raised the subject of data mining at
the House hearing. Rep. John Conyers
(D-MI), the ranking Democrat on the Committee, faulted the DOJ for "excessive
collection of personal data" during his long recitation of grievances.
Rep. Howard Berman (D-CA) too
raised the subject of "mining data from non-public databases".
Rep. William Delahunt (D-MA)
complained about government mining of "a broad stretch of both public and
non-public databases, without a particularized need being articulated to discern
whether" any terrorist threats are implicated.
He advocated requiring executive branch departments and agencies to "report
to Congress about their initiatives regarding data mining. The American people
are concerned for privacy."
Section 218. The HJC's Crime Subcommittee will hold a hearing titled
"Oversight Hearing of the Department of Justice to Examine the Use of Section 218
of the USA PATRIOT Act" on April 14.
Section 218 of the PATRIOT Act provides, in full that "Sections 104(a)(7)(B)
and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the
Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the
purpose´ and inserting `a significant purpose´."
The FISA is codified at 50 U.S.C. §§ 1801-1862. It sets out rules for the
collection of information categorized as foreign intelligence surveillance. Foreign
intelligence now includes any person who the government contends is aiding, abetting,
or conspiring with others in international terrorism. The FISA regime is distinct from
the "Title III" regime for the issuance of warrants in criminal proceedings.
The FISA was enacted in 1978, and has been amended several times since.
One notable change enacted in the PATRIOT Act pertained to the purpose
of surveillance. Prior to passage of the PATRIOT Act, the government had to certify
that "the purpose" of the surveillance was to obtain foreign intelligence
information. The PATRIOT Act merely required that foreign intelligence
information be a "significant purpose".
At the time the PATRIOT Act was being considered, and since, critics of
Section 218 have argued that it can be abused. That is, FISA orders will be used
to collect information in criminal cases, but without the procedural safeguards
that are associated with Title III.
AG Gonzales wrote in his prepared testimony for the House hearing that
section 218 "removed what was perceived at the time as the primary impediment to
robust information sharing between intelligence and law enforcement personnel"
and "provided the necessary impetus for the removal of the formal administrative
restrictions as well as the informal cultural restrictions on information
sharing".
Section 218 is one of the provisions of the PATRIOT Act that is scheduled to
sunset at the end of this year.
Section 215. Section 215 of the PATRIOT Act was the most discussed,
and most controversial, issue at both the House and Senate hearings.
This section is titled "Access to records and other items under the Foreign
Intelligence Surveillance Act". It does not reference libraries or library
records. However, most of the debate focused on library records.
§ 501 of the Foreign Intelligence Surveillance Act (FISA) enables the FBI to
obtain from a judge or magistrate an order requiring the production business
records. While the statute does not expressly include library records, it is not
disputed that library records could be obtained.
AG Gonzales stated at both the House and Senate hearings that no Section 215
orders have been obtained for library records. However, he added that libraries
have voluntarily provided records.
§ 215 of the PATRIOT Act rewrote § 501 of the FISA, which is codified in
Title 50 as § 1861. It pertains to "Access to Certain Business Records for
Foreign Intelligence and International Terrorism Investigations". § 215 (of the
PATRIOT Act) replaced §§ 501-503 (of the FISA) with new language designated as
§§ 501 and 502.
Currently, § 501 (as amended by § 215) requires that an application to a
judge or magistrate "shall specify that the records concerned are sought for an
authorized investigation conducted in accordance with subsection (a)(2) to
obtain foreign intelligence information not concerning a United States person or
to protect against international terrorism or clandestine intelligence
activities." Allowing § 215 to sunset would raise the standards for obtaining a
FISA order for business records.
The American Library Association (ALA) has
been the most vocal opponent of § 215. Other groups, such as the
American Publishers
Association (APA), have joined in the criticism. TLJ spoke with former Rep. Pat
Schroeder (D-CO), who is now the head of the APA. She said that publishers are
concerned that Section 215 orders might be used to compel publishers to give
book drafts to intelligence agents, and that the availability of Section 215 for
library records could lead libraries not to purchase certain books from
publishers.
Rep. Zoe Lofgren (D-CA) stated
at the hearing that "I don't think any of us had in mind libraries and
booksellers" when the Congress passed the PATRIOT Act.
She asked Gonzales if he would accept an amendment to Section 215 that would
exclude "personally identifiable information" from libraries and booksellers.
AG Gonzales said that he could not accept such an amendment. He explained
that people use libraries to plot terrorist attacks. He said that "we should not
allow libraries to become safe harbors for terrorists".
FBI Director Mueller addressed Section 215 in his prepared testimony. He
wrote that "Section 215 changed the standard to compel production of business
records under FISA to simple relevance ... and expands this authority from a limited
enumerated list of certain types of business records (i.e. hotels, motels, car and truck
rentals) to include “any tangible things (including books, records, papers, documents,
and other items) for an investigation to protect against international terrorism or
clandestine intelligence activities, provided that such investigation of a United
States person is not conducted solely upon the basis of activities protected by the
first amendment to the Constitution.”" (Parentheses in original.)
Mueller continued that "Obtaining business records is a longstanding
law enforcement tool. Ordinary grand juries for years have issued subpoenas to all manner
of businesses for records relevant to criminal investigations. Section 215 authorized the
FISA Court to issue similar orders in national security investigations. It contains a
number of safeguards that protect civil liberties. Section 215 requires FBI
Agents to get a court order. Agents cannot use this authority unilaterally to
compel any entity to turn over its records. In addition Section 215 has a narrow
scope. It can only be used to obtain foreign intelligence information not
concerning a United States person or to protect against international terrorism
or clandestine intelligence activities. It cannot be used to investigate
ordinary crimes, or even domestic terrorism."
Many Republicans argued that Section 215 has been misunderstood, or has been
the subject of media hype.
Sen. Jeff Sessions (R-AL) provided the
most colorful defense of Section 215 during the Senate's hearing on April 5.
At one point, when FBI Director Mueller referenced the "sanctity"
of libraries, Sen. Sessions interrupted. He yelled, "Why does a library have
sanctity"? He questioned why library records should be accorded any more sanctity
than medical records. Mueller responded that some librarians think that library records
have "sanctity".
Sen. Sessions said that the criticism of Section 215 is coming from the American
Library Association. He called their allegations "amusing".
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| Woodstock? |
There was an extended rock concert near Woodstock, New York in
1969 that was attended by several hundred thousand individuals, most
of whom identified themselves as "hippies", "anti establishment"
and/or members of a "counter culture". Many smoked marijuana and
ingested mind altering drugs. Some of the performers later died of
drug related causes. However, some of the rock music performed at this
event was excellent.
Perhaps Sen. Sessions means to suggest that some of the opponents of § 215
sound like aging radicals who are suffering from the effects of drug abuse in
their youth.
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He also called these criticisms "mists out of Woodstock".
Abuses of the PATRIOT Act. Another topic of debate, both at the House
hearing on April 6 and at the Senate hearing on April 5, was whether there have
been any abuses of the PATRIOT Act.
AG Gonzales said that there have been no abuses of the PATRIOT Act.
Several Republican Representatives and Senators said that there have been no
abuses of the PATRIOT Act. For example, Rep. Sensenbrenner said that "To date,
the Inspector General has issued 6 reports and not found a single example of a
civil liberties violation relating to the authority granted under the PATRIOT
Act."
In contrast, Sen. Leahy wrote in his opening statement that "We
have heard over and over again that there have been no abuses as a result of the PATRIOT
Act. But it is difficult, if not impossible, to verify that claim when some of the most
controversial surveillance powers in the PATRIOT Act operate under a cloak of
secrecy. We know the government is using its surveillance powers under the
Foreign Intelligence Surveillance Act more than ever, but everything else about
FISA is secret. This difficulty in assessing PATRIOT’s impact on civil liberties
has been exacerbated greatly by the Administration’s obstruction of legitimate
oversight efforts."
The day before the Senate hearing the ACLU wrote a
letter
to Sen. Dianne Feinstein (D-CA), a
member of the Committee, it which it asserted that "the government has abused
and misused the Patriot Act repeatedly".
Gonzales discussed this letter and related allegations at the hearings.
He suggested, with references to this letter, and other claims, that the allegations
of abuse either do not pertain to the PATRIOT Act, or do not amount to abuses.
Secrecy and Oversight. Several Democrats raised the subject of
government secrecy at the House hearing.
Rep. Adam Schiff (D-CA) complained to Gonzales that on some issues the most
information that he had obtained came, not from the DOJ to the HJC, but from a
speech by Gonzales to the ABA.
Although, Rep. Schiff also criticized the Committee, and by implication, its
Republican leadership, for failing to engage in sufficient oversight.
Rep. Howard Berman (D-CA) noted
that Gonzales appears to listen to and understand the questions of the Committee
members. Rep. Berman said that "that is already an improvement over your
predecessor", who was John Ashcroft.
However, while Berman complained about the previous Attorney General, one
Republican used this hearing to attack an earlier administration. He asked
Gonzales if the information that DOJ collects will go to the White House.
Gonzales said "certainly not".
Rep. Gorman then referenced an earlier "corrupt" administration
that acquired FBI files from the FBI, which is a part of the Department of Justice.
In the Senate hearing on April 5, Republicans joined in raising the oversight
issue. For example, Sen. Charles Grassley (R-IA),
senior member of the Committee, did not attend, but submitted a
statement for the record. He wrote that "the Act has been instrumental in
helping Federal authorities thwart terrorist activities since September 11, 2001".
However, he also said that "any bill regarding the PATRIOT Act" should
"include adequate oversight and reporting measures".
Terrorism and Intellectual Property Piracy. Several of the House
Judiciary Committee's members take a keen interest in technology related issues.
One of these, Rep. Rick Boucher
(D-VA), did not participate in the hearing. Another,
Rep. Bob Goodlatte (R-VA),
attended, but did not raise any of the technology related issues associated with
the PATRIOT Act.
However, Rep. Goodlatte expressed his concerns regarding the piracy of
intellectual property by terrorists to fund their operations. He also commended
the Department of Justice for establishing an anti-piracy task force, and
praised the DOJ's operation Fastlink.
He also asked Gonzales whether this leadership with respect to intellectual
property crime is going to continue.
"Absolutely", said Gonzales. "We realize that it remains a
problem", and that it is a vehicle "to finance potential terrorism".
Representatives of industry sectors whose intellectual property has been
pirated, as well as many Members of Congress and law enforcement officials, have
asserted that there is a connection between terrorism and intellectual property
piracy.
However, Asa Hutchison testified at a House hearing in 2003 on this subject.
He is a former member of the House Judiciary Committee, and a former Under
Secretary at the Department of Homeland Security
(DHS). He testified in July of 2003 that neither the DHS's Bureau of Immigration
and Customs Enforcement (BICE) nor the Bureau of Customs and Border Protection (BCBP)
"have established a direct link between profits from the sale of counterfeit
merchandise and specific terrorist acts". See, story titled "House Committee
Holds Hearing on IP Piracy and Terrorism" in
TLJ Daily E-Mail
Alert No. 701, July 18, 2003.
Attendance. The hearings held in the House of April 6 and in the
Senate on April 5 did not attract large audiences.
The House hearing was held in the HJC's hearing room. Many seats were empty
throughout the hearing. In contrast, many hearings and markup sessions of the HJC fill up the
room, and many persons are unable to gain access.
The Senate held its hearing in Room 216 of the Hart Senate Office Building,
rather than in the Senate Judiciary Committee's usual hearing room in the
Dirksen Building. The Hart hearing room is larger.
The audience section was divided into three parts -- a reserved section,
primarily for interested administration personnel, a section with tables for
reporters, and a public seating section. The majority of the seats in the
reserved section and in the reporters section were empty. The public section did
not come close to filling.
Frequently, the Senate Judiciary Committee holds hearings that attract more
public interest. Spectators line up outside the doors long before the hearing.
Many never gain admittance. Those who do often have to stand.
The USA PATRIOT Act is the "Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It
was enacted after the terrorist attacks of September 11, 2001 by the 107th
Congress as
HR 3162. It became Public Law 107-56 on October 26, 2001.
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