On PATRIOTs and JUSTICE: Leahy’s PATRIOT Renewal

The House and Senate had hearings on the reauthorization of the PATRIOT Act last week while I was traipsing around the Big City. You can access links to watch the Senate hearing here and the House hearing here. In addition, four Senators (including Feingold, Dodd, Leahy and Merkley) have introduced a bill to repeal telecom immunity, and Senators Feingold and Durbin introduced a JUSTICE bill to further roll back the PATRIOT Act as well as parts of FISA.

I’m going to try to do a blizzard of posts between now and Thursday, when the Senate Judiciary Hearing will be marking up its version of the bill. For now though, let me review what Leahy’s reauthorization bill–S.1692–does. As described by Leahy in his testimony, the PATRIOT reauthorization extends the sunset for some PATRIOT provisions to 2013, but adds in additional oversight as follows.

I introduced a bill with Senators Cardin and Kaufman that aims to strike the kind of balance the administration urges. It will extend the authorization of the three expiring provisions with new sunsets. It adds checks and balances by increasing judicial review of Government powers that capture information on U.S. citizens. It expands congressional oversight and public reporting on the use of intrusive surveillance measures.


In response to these concerns, our bill would impose higher standards on the issuance of NSLs and improve judicial oversight of their use. The bill also addresses the constitutional deficiency recently identified by the Second Circuit Court of Appeals, which found that the nondisclosure, or "gag orders," issued under NSLs infringe constitutional rights, as I have long maintained. The bill establishes a procedure giving the recipient of an NSL greater ability to challenge a gag order, eliminates presumptions that allow the Government to ensure itself of victory in defending such orders, and imposes a renewable one-year time limit on these orders.


The power of the Government to collect records for tangible things under Section 215 of the original Patriot Act, commonly referred to as the "library records" provision, is another authority that I fought hard to reform during the last reauthorization. The Leahy-Cardin-Kaufman bill adopts the appropriate constitutional standard that I supported in 2006. The standard we propose eliminates the presumption in favor of the Government and, instead, requires the Government to show the connection between the items sought and a suspected terrorist or spy.

This bill would also establish more meaningful judicial review of Section 215 orders and the gag orders covering them. It repeals the requirement in current law that requires a recipient of a Section 215 nondisclosure order to wait for a full year before challenging that gag order. It also repeals the conclusive presumption in favor of the Government for such gag orders any time a high-level official certifies that disclosure of the order would endanger national security or interfere with diplomatic relations.


The Leahy-Cardin-Kaufman bill also improves Government accountability through more transparent public reporting of the use of surveillance, and by requiring audits of how these vast authorities have been used since they were last reauthorized.


This bill will strengthen court oversight of Section 215 orders by requiring court oversight of minimization procedures when information concerning a U.S. person is acquired, retained, or disseminated. Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. If we are to allow personal information to be collected in secret, the court must be more involved in making sure the authorities are used responsibly and that Americans’ information and personal privacy are protected.

Finally, this bill addresses concerns over the use of pen register or trap and trace devices ("pen/trap"). The bill raises the standard for pen/trap in the same manner as it raises the standard for Section 215 orders. The Government would be required to show that the information it seeks is both relevant to an investigation and connected to a suspected terrorist or spy. This section also requires court review of minimization procedures, which are not required under current law, and adds an Inspector General audit of the use of pen/trap that is modeled on the audits of Section 215 orders and NSLs.

The NSL–or National Security Letter–allows law enforcement officers to get certain kinds of financial records. NSLs do not require court review.

Section 215 allows law enforcement officers to get tangible things–be they library records or any other tangible thing–with court review. Both NSLs and Section 215 orders include a gag order, so the recipient cannot reveal they have received such an order.

So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:

  • Extend the roving wiretap, Section 215 (tangible things), and "lone wolf" provisions of the PATRIOT Act to 2013
  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
  • Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it

This seems to be the starting point, with Leahy’s bill (co-sponsored by Joe Biden’s sit-in) to apprarently form the model for the PATRIOT renewal going forward.

33 replies
  1. scribe says:

    While they’re at it, how about judicial review of putting people on the no-fly list, and requiring purging the no-fly list and all those other anonymous denunciation fora that seem to have sprung up like so many mushrooms after a rainstorm.

    Not to mention compelling the government to give individuals access to and the right and power challenge the information in every database the government keeps (with or without the assistance of contractors).

    Just a couple little things.

  2. fatster says:

    OMG. I gotta go get some rest. I can’t even keep up with her when she’s on a roll, and now she’s promised a blizzard of posts by Thursday.

  3. MadDog says:

    As per the NSLs, even DOJ Inspector General Glenn Fine’s statement of testimony (17 page PDF) before the SJC hearing on reauthorizing the Patriot Act has some fairly damning reporting on the use of NSL:

    …In 2005, the Patriot Reauthorization Act directed the OIG to review the FBI’s use of NSLs and Section 215 orders. In March 2007, the OIG issued reports examining the FBI’s use of Section 215 orders and NSLs, which found serious misuse of NSL authorities…

    …Our review of the FBI’s use of NSLs from 2003 – 2006 identified a general upward trend in their use, with the FBI issuing more than 192,000 NSL requests during this 4-year period.

    However, the OIG found that these statistics, which were based on information from the FBI’s database, significantly understated the total number of NSL requests issued by the FBI because the FBI’s tracking database was inaccurate and did not include all NSL requests. For example, our examination of case files at four FBI field offices found approximately 22 percent more NSL requests in the case files that we examined than were recorded in the database for those same files.

    Our reports recognized the significant challenges the FBI faced and the major organizational changes it was undergoing during our review period. Nevertheless, we concluded that the FBI engaged in serious misuse of NSL authorities…

    It gets much worse. One should read DOJ IG Fine’s entire testimonial statement to see just how out of control our government is under the Patriot Act.

      • bobschacht says:

        Well, OK, Graves supports Leahey’s bill, but she also refers to

        “…other provisions that should be on the table….Other secret surveillance powers that undermine Americans’ privacy can and should be on the table, and so I would urge this Committee, this Congress, and the new Administration not to feel bound by the narrow topics teed up back in 2006 for debate today.”

        Graves also supports the Feingold amendments:

        I hope a majority of this Committee will support Senator Feingold’s amendments to sensibly update the standards for issuing NSLs and revise other powers that are dangerously overbroad or unjustified, as detailed in his JUSTICE Act.

        However, I can find no explicit references to Fine’s report.

        Bob in AZ

        • MadDog says:

          …However, I can find no explicit references to Fine’s report.

          No, nothing explicit. However, all her commentary tended to demolish most of Fine’s lipsticking, and therefore, an implied demolition.

          Most IGs, and Fine should be included in that group, tend to low-key their criticism of their respective agencies (CIA IG Helgerson was another).

          For example, all of Fine’s NSL criticism regarding the FBI’s track record of NSL abuse never once let on the fact that it was actually against the law.

          As in, the FBI, chartered to enforce federal law, was in fact breaking the law.

          Penalties for federal law enforcement officials breaking the law? Nada!

          In fact, good ol’ boy DOJ IG Glenn Fine never once mentioned the FBI was breaking the law, nor did he make a referral to the DOJ for said lawbreaking.

    • bobschacht says:

      Thanks for this extract from Fine’s testimony. Do the Leahy proposals do enough to rein in these excesses?

      And in what ways does Lisa Graves smash Fine’s testimony to bits? Is she saying that Fine’s testimony wasn’t critical enough? or too critical?

      Bob in AZ

      • MadDog says:

        It depends on the baseline one starts from.

        While it “improves” some things like NSL and 215 orders, that assumes both were good things to begin with, and I have some serious doubts about that.

        EW has linked to Senator Leahy’s Patriot Act reauthorization bill S.1692, but one also needs to add to the mix the “Judicious Use of Surveillance Tools In Counterterrorism Efforts Act of 2009″; shorter called the “JUSTICE Act Of 2009″ (103 page PDF).

        In either case, the devil will be in the details.

        And given the general non-Progressive nature of both the Senate Democrats as well as President Obama himself (he voted for the FISA Amendment Act last year giving Telcos retroactive immunity), I suspect there will indeed be a devil or two in those details.

        For example, EW quoted this from Senator Leahy’s testimony:

        …The bill also addresses the constitutional deficiency recently identified by the Second Circuit Court of Appeals, which found that the nondisclosure, or “gag orders,” issued under NSLs infringe constitutional rights, as I have long maintained. The bill establishes a procedure giving the recipient of an NSL greater ability to challenge a gag order, eliminates presumptions that allow the Government to ensure itself of victory in defending such orders, and imposes a renewable one-year time limit on these orders…

        This is an example IMHO of putting lipstick on a pig!

        From Lisa Graves’ testimony (10 page PDF):

        …Section 505 of the Patriot Act, which is known as the National Security Letter (NSL) power…

        …Section 505 demands for information about financial transactions, phone records, internet transactions (who you e-mail and who e-mails you), and credit reporting information…

        We’re talking about Credit Card companies, Telcos, Banks, Internet Providers, etc.

        Now ask yourself if any one of those folks could give a damn about releasing your information?

        Gag orders or not? These companies could fookin’ care less!

        And you, the subject of these Section 505 NSLs?

        You ain’t never gonna know these companies gave your entire life history away on the simple signature of the local FBI office’s Special Agent in Charge (SAC).

        No judge, no lawyer representing you, was ever in the loop!

        So yes, the pig looks prettier with lipstick, but it’s still a fookin’ pig!

  4. benmasel says:

    The most important reform of PATRIOT missing from both bills: The judgeshopping allowed the Feds in seeking warrants. Traditionally, it had to come from a Federal judge in the district where the search was to occur. No longer. If they want to go into a District where the judges are sceptical of government claims of probable cause, they can not just ask a judge in Alabama.

    • bmaz says:

      Um, that is awfully generalized. Exactly what “warrants”, under what circumstances, and under what provisions (as compared with which provisions of normal Federal criminal practice) are you talking about?

      • benmasel says:


        Rule 41(a) of the Federal Rules of Criminal Procedure is amended by
        inserting after “executed” the following: “and (3) in an
        investigation of domestic terrorism or international terrorism (as
        defined in section 2331 of title 18, United States Code), by a Federal
        magistrate judge in any district in which activities related to the
        terrorism may have occurred, for a search of property or for a person
        within or outside the district”.


        (a) In General.–Chapter 121 of title 18, United States Code, is
        (1) in section 2703, by striking “under the Federal Rules
        of Criminal Procedure” every place it appears and inserting
        “using the procedures described in the Federal Rules of Criminal Procedure by
        a court with jurisdiction over the offense
        under investigation”; and
        (2) in section 2711–
        (A) in paragraph (1), by striking “and”;
        (B) in paragraph (2), by striking the period and
        inserting “; and”; and
        (C) by inserting at the end the following:
        “(3) the term `court of competent jurisdiction’ has the
        meaning assigned by section 3127, and includes any Federal court
        within that definition, without geographic limitation.”.

        (b) Conforming Amendment.–Section 2703(d) of title 18, United
        States Code, is amended by striking “described in section 3127(2)(A)”.

        (This isn’t quite as broad as I thought I’d remembered, perhapse from my reading of the original Justice Deptartment draft back when PATRIOT was pending.)

        I’m wasn’t suggesting this is the worst of PATRIOT, only that it’s the worst provision that Feingold’s bill doesn’t touch. Now that you’ve made me re-read it, I may have to downgrade my assesment.

  5. Leen says:

    Chris Matthews had the balls to ask the tough and main questions having to do with our Iran attack drum beat. Chris “Will Israel attack Iran” and How much time has Netanyahu given Obama to do what Israel wants? These are the core questions.

    Micheal Rubin and Bob Baer on Hardball tonight (unable to link)

  6. csoghoian says:

    I filed a FOIA last Wednesday with DOJ OIG for the full, unredacted report from 2008 on the use of Section 215 orders. I thought that you all might be interested in some of the stuff I dug up which prompted the letter.

    The public statistics on the use of pure Section 215 orders likely exclude those associated with classified programs

    On September 22, 2009, Todd Hinnen, the Deputy Assistant Attorney General for law and policy in DOJ’s National Security Division testified before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties in support of the reauthorization of key provisions of the USA PATRIOT Act.

    During his oral testimony, Mr. Hinnen stated that:

    “The business records provision [Section 215] allows the government to obtain any tangible thing it demonstrates to the FISA court is relevant to a counterterrorism or counterintelligence investigation.

    This provision is used to obtain critical information from the businesses unwittingly used by terrorists in their travel, plotting, preparation for, communication regarding, and execution of attacks.

    It also supports an important, sensitive collection program about which many members of the subcommittee or their staffs have been briefed.” (testimony between 24:50 and 25:30)

    The redacted copy of the 2008 OIG report on the use of Section does not reveal any direct information about such an important, sensitive collection program. There are, however, a few heavily redacted breadcrumbs that support Mr Hinnen’s testimony.

    First, the report notes that “Two Classified Appendices describe other uses of Section 215 orders to collect [redacted]” (page 3). This sentence provides a hint that Section 215 is being used in ways not known to the public.

    Second, according to the report, the number of pure Section 215 applications submitted and approved by the FISA court was 7 in 2004, 14 in 2005, and 15 in 2006 (Table 3.2, Page 16). While the total number of US and Non-US persons identified as subjects in these Section 215 orders is redacted, the shape of the black redaction boxes implies a two digit number for each (Table 3.3, Page 16).

    A footnote on page 16 states that “Table 3.3 includes the four Section 215 orders processed in 2006 and signed in 2007 and excludes [one line of redacted text].”

    The report also notes that “Table 3.3 does not reflect the number of U.S. persons and non U.S persons about whom information was collected as a result of [one line of redacted text].” This exclusion of certain Section 215 orders from the statistics is mentioned (and redacted) again on page 17 and 18.

    These redacted sections, and Mr. Hinnen’s testimony before the House Judiciary subcommittee suggests the existence of at least one classified intelligence program which makes use of Section 215 orders to collect information on U.S. and non U.S. persons. The 2008 report thus paints a deceptively false picture regarding the frequency of the government’s use of Section 215 orders, as the published statistics do not include those orders associated with the classified program.

    Combination Section 215 orders are likely being used to collect geographic location information

    The 2008 report notes that OIPR used Section 215 requests in combination with a FISA pen register/trap & trace requests in order to obtain both the subscriber records and the calling records associated with a suspect’s telephone line, as neither order by itself was deemed by OIPR to be enough to provide both types of record (page 20).

    The report also notes that “OIPR also used combination orders in 2005 and 2006 to obtain [three lines of redacted text].” And that “[a]fter passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [one line of redacted text].” On the following pages, there are several other redacted statements that reveal that another kind of information had been sought using these combination orders.

    I suspect that this mystery second use was the compelled delivery of suspect’s geographic location information from the wireless phone companies. Such a theory would seem to fit with the government’s long standing use of “hybrid” Pen Register/Stored Communications Act orders in criminal cases to obtain location information from wireless communication providers. (See: In re United States for Order for Disclosure of Telecommunications Records, 405 F. Supp. 2d 435, 443-49 (S.D.N.Y. 2005); but see In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747 (S.D. Tex. 2005) (denying government request under “hybrid theory”), available at: http://www.txs.uscourts.gov/di…..pinion.pdf)

    • emptywheel says:


      Very interesting.

      I’m sure you saw Feingold’s comments–he’s trying to get Kris and the Administration to admit how FISA and this are used in ways we don’t know about.

      And I’d bet this is just what he’s talking about (a view that Graves reflects, I think).

  7. Hmmm says:

    So… if the telecom immunity repeal should by some unimaginable miracle of legislative-fu happen to get enacted, how would that affect the previously brought civil cases? Wouldn’t this arrive too late?

    • Hmmm says:

      Actually this reminds me of something I’ve been meaning to ask… Remember that bit about W’s EO enabling POTUS to grant corporations leave to file erroneous financials with the SEC in cases where a national security interest would be affected (and I’m sure I’ve mischaracterized that in some important way) — that EO could be used to hide telecom corp income from the USG — potentially colossal payments if I’m not mistaken — to pay for surveillance operations conducted by the telecom including but not necessarily limited to both warrantless wiretapping and live GPS location info for all the mobile phones, could it not?

      • readerOfTeaLeaves says:

        Oh, my, what a question!
        And would that not also apply to ‘Xe’, or Halliburton, or other familiar corporate entities? Including Citibank and others…?

        Well, my doesn’t this kick over an interesting hive of bees?

      • Hmmm says:

        Maybe there’s some mechanism by which the trial could be reset to the point where it was when immunity was enacted? It was a live controversy right up until that point.

          • bmaz says:

            Whew doggie, there is no way to even start to discuss this until exact wording of legislation is known. It will be a clusterfuck. My guess is there is absolutely zero chance of such a provision passing, if it did there is a good chance Obama would veto, and if it is even taken out of committee, I bet they attach a clause that it is only prospective repeal, not retroactive, so that the dismissal of the cases by Walker maintains.

            • MadDog says:

              Yeah, I couldn’t see how that bell could get unrung.

              As passage is most unlikely, we ain’t gonna be treated to no such legal low comedy, though SJC arguments on the subject might have some entertainment value. *g*

  8. radiofreewill says:

    Fixing the holes in the NSLs and Section 215 that enabled Bush to Impose his Dictates without Legislative Over-sight – and to Hide the Extent of his ‘Extra’-Constitutional Activities from Judicial Review – is Hardly Addressing the Most Fundamental Issue here.

    While I agree that Leahy’s work with the Patriot Renewal is a step in the right direction, it’s not going to be possible for him to write a Bill long-enough to ‘cover’ all the Possibilities of Mis-use by Bad Faith Actors like former-President Bush.

    To deal with Bush’s Bad Faith Excesses by imposing limits on the particulars that were Abused – in the manner being pursued presently – is like trying to put Baby Gates on the Oval Office Doorways – when Bush, or the next Bush-protege, can easily step over them, again, in Bad Faith.

    No, the real fix, imvho, is to Deal with the Issue of Bad Faith Actors Head-On.

    Once Bad Faith by the Executive is Established – Red Flags should go up indicating that there is a Cancer in the Presidency that must be Isolated and Removed for the sake of the Body of the People.

    If the Corruption of Bad Faith isn’t rooted out and punished – it will only grow until it metastasizes across the entire Constitution and over-runs Our Healthy Democratic Systems.

    No amount of treating the Symptoms of Bad Faith, imvho, will be enough to Stop the Bad Actors from Continuing to Try to Game the System for Power-Unanswerable-to-the-Law.

    Sen. Leahy and Company – it’s sad to say – have yet to do The Real Work of Bringing the Harmers of the Constitution to Justice.

    And without excision, the Bad Guys Will Be Back – even bigger and meaner the next time!

  9. Mary says:

    Talk about disappointing.

    I’m sure we are supposed to think – oh, well, it’s “only” until 2013, and when Obama is re-elected and Dems are re-elected, they’ll fix it then.


    What good is it to give the rights to contest an NSL to the information holder, with no incentive for them? What happened to an advocacy system? What happened to a judicial approval of warrants, based on probable cause to believe a person is committing a crime? Where are the penalties for abuse or misuse? Where is the notice to innocent people that they have been targeted by their own government? Where is the notice to and protection of and recourse for abuse in citizens invaded as a matter of convenience or prurience or politics, not bc there is any conceivable reason to invade their information, but bc their information is interwoven with others (i.e. “Minimization”)

    What good is (and what Constitutional grounds is there for) Congressional “oversight” so that Congress sits back and watches how the exec violate the 4th amendment – with no punishment and no grounds to substitute congressional “oversight” for independent applications to an unbiased magistrate with the power to punish abuses and turn down applications and provide a forum for recourse to invaded citizens who, upon being provided after the fact notice can at least utilize the advocacy process at that point.

    Such a disappointment.

  10. fatster says:

    O/T (Old Topic), and a bright spot in the day in Northern CA. Hope it grows ever brighter.

    Ex-California Rep. Doolittle, wife named in corruption case
    By Steve Wiegand | The Sacramento Bee

    “Federal prosecutors named former Rep. John Doolittle as an unindicted co-conspirator in a corruption case against one of Doolittle’s former aides.

    I”n documents filed in U.S. District Court in Washington, D.C., last week, the government also alleged Doolittle’s wife, Julia, and nine other people were co-conspirators of Kevin A. Ring.”


Comments are closed.