There’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.

[snip]

In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Because most innocent Americans don’t have a clue what’s going on here, that their own personal information, documentation, tangible things, and business records, can be, in fact, investigated, and may be investigated. They don’t know. But there was one group, called the American Library Association, that said, "we’re going to stand up for everybody. Not just those that know their rights are being violated, but those who might be violated, we think there’s a constitutional principle involved in it." You have characterized their efforts as unwarranted and irrational. I see it differently. Senator Kyl’s entitled to his opinion. I think they were very rational and constitutional. And because they stood up for the principle and made the noise, in your words, we’re gonna cut ’em loose. We’re going to get rid of a political argument here when it comes to libraries. But it’s totally inconsistent. If all of the hospitals in America come together with the American Hospital Association and say, "we want to protect the confidentiality of our medical records for innocent Americans who haven’t been accused of any possibility of terrorism." If they make enough noise and enough quote irrational noise, are we going to except them the next time that we go through this? Is the principle sound if that’s the case? I think the principle is sound enough that it was passed unanimously here four years ago and should be passed again.

As Kyl and Durbin have this exchange, Leahy twice pushes for an immediate vote, with Feinstein pushing, too. Ultimately the committee votes–on an amendment to reinstate the controls on Article 215 that Leahy had originally had in the bill–to kill the amendment.

Durbin and Kyl are right.  Leahy and DiFi included this language solely to avoid a political fight with an existing lobby that knows the implications of this Section. They know that if too many other groups realize the implications of the librarians’ larger argument, more people will object.

So to prevent the librarians from doing anything to mess up their attack on the Fourth Amendment, two Democratic Senators have just bought their silence with this clause of the bill.

(Image by http://www.flickr.com/photos/quinnanya/ / CC BY-SA 2.0)

As I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.

Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).

(2) shall include— (A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) 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, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; 

Here’s the language that Pat Leahy had originally proposed.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

‘(i) are relevant to an authorized investigation (other than a threat assessment) 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; and

‘(ii)(I) pertain to a foreign power or an agent of a foreign power;

‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.

But here’s what I understand DiFi has changed the language to (I’ve included the actual language below so you can check my work).

(2) shall include— (A) a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) 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; such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

DiFi’s language does two things. First, it shifts the burden of proof even further than the current "presumptively relevant" to the "justify the belief of the applicant language." If I understand the language correctly, the FISA Judge would go from presuming something is relevant if the FBI has told him so, to simply checking to make sure the FBI has shown why they believe this information is relevant–and to hell whether the FISA Judge thinks it is relevant or not. Though I guess in both cases the FISA Court is just a mandated rubber stamp. [Update: I’ve spoken with two people who have persuaded me the new language is an improvement over the "presumptively" language. Update2: Nope, I think I was right the first time.]

More troubling, DiFi completely eliminates any requirement that the Section 215 records have to pertain to someone with a known contact with someone suspected to be an agent of a foreign power. Whereas under the current language, the FBI arguably can only collect lists of people who have some kind of connection to Zazi who have also bought acetone and/or hydrogen peroxide, under DiFi’s proposed language, they could collect lists of everyone–everyone!!–who has bought products with acetone or hydrogen peroxide in it.

As Russ Feingold pointed out yesterday, during the last reauthorization of the PATRIOT Act, DiFi said that such broad language would be an invitation to a fishing expedition. 

I guess, in the interim four years, she has developed a taste for fishing.

(Image by Louisiana Angler)

---

RECORDS AND TANGIBLE THINGS.
(a) IN GENERAL.—Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended—

(1) in the section heading, by inserting ‘‘AND OTHER TANGIBLE THINGS’’ after ‘‘CERTAIN BUSINESS RECORDS’’;

(2) in subsection (b)(2)—

(A) in subparagraph (A)—

(i) by striking ‘‘a statement of facts showing’’ and inserting ‘‘a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant’’; and

(ii) by striking ‘‘clandestine intelligence activities,’’ and all that follows and inserting ‘‘clandestine intelligence activities;’’; and

(B) by striking subparagraph (B) and inserting the following:

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

‘‘(C) a statement of proposed minimization procedures.’’; and

(3) in subsection (c)—

(A) in paragraph (1)—(i) by inserting ‘‘and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g)’’ after ‘‘subsections (a) and (b)’’; and (ii) by striking the second sentence; and (B) in paragraph (2)— (i) in subparagraph (D), by striking ‘‘and’’ at the end; (ii) in subparagraph (E), by striking the period at the end and inserting ‘‘; and’’; and (iii) by adding at the end the following: ‘‘(F) shall direct that the minimization procedures be followed.’’

You can watch the hearing here.

Durbin joins Feingold in complaining that the substitute bill took out the Section 215 oversight.

Durbin: I’m especially concerned that the substitute removes one of the most important reforms from bill–the requirement that govt show some connection to terrorism. Real reason why that has been taken out has been cloaked in secrecy.   I believe that each member of this committee seek a classified briefing to understand why this has been taken out.

Kyl asking for more time, and a classified briefing. 

Kyl: Every time you include a sunset with a bill it provides bargaining leverage for those trying to cut back on authorities in the bill.

[Gee, you think?]

Kyl: Rowley warned of lone wolf problem with Moussaoui.

[Ignoring that they could have gotten a criminal warrant.]

Kyl: Why would we sunset the NSLs? Abuses that occurred are not continuing. 

Franken: Yield for clarification. You said passed on recommendations of the 9/11 Commission?

Kyl: Yes, DiFi and I had a series of recommendations from terrorism subcommittee. For the most part acted on right after 9/11, but not in entirety. 9/11 Commission made series of recommendations, three different laws. My point was that in trying to respond to recommendations.

Cardin: If this gets delayed until December because of differing views, we’ll do a disservice. Compliment you and DiFi. SJC and SSCI both have goal of protecting security and rights of people. Judicary focused on rule of law. 

Whitehouse: Compliments to Leahy and DiFi, and staffs of SSCI and SJC. With adoption of Leahy/DiFI substitute, I be added to cosponsor bill.

DiFi: Respond to two things. Roving wiretap. Has been suggested that roving wiretaps can be used against anyone. In fact roving wiretap can only be used after court order, probable cause that agent of foreign power. W/o that power, terrorist can thwart surveillance by switching phone. That has increasingly happened. Court must also find that target trying to avoid surveillance. NSLs: carefully targeted to make sure can’t be used for highly sensitive information. Subscriber information. Name when phone number is known.

Feingold: As to issue of whether this bill will have to be passed by end of year. Record is when difficulty, extend sunset of bill. No one trying to have PATRIOT die. Never opposed having this in place. No rush to this. As to NSL issue. I am not seeking to have scenario where NSL authority dies. We proposed NSLs that does not have sunset. Notion that we’re going to continue with "trust us" approach with FBI that has been demonstrated to be abusing its authority. Opportunity to fix it and make it permanent. 

Durbin: Amendment?

Coburn: SJC and SSCI. Big difference between NSLs. DEA can issue NSL right away. We say we want to put it in law, but if we put it in law to limit it, we’re goign to take away authority that we need. We need better oversight on this committee and SSCI. I believe in sunsets in all of these. We always ought to have to look at it again, protect rights of Americans. Don’t agree with bill before us. Identify with Feingold. We want it to come out 18-0 again, develops confidence in American people what we’re doing. Need to restore confidence. Lack of confidence in govt.

Durbin: Amendment. Specter asked to be added as co-sponsor. Amendment, going back to point made by Senator from OK, puts in language appeared unanimously. Individualized suspicion for 215 order. Before PATRIOT, could only issue 215 for current terrorist or spy. Personal information on constitutionally protected activities of any American. Could lead to govt fishing expedition. Business groups: Chamber, and NAM: Should be required to show some tie to terrorism. Spent many hours negotiating 3-part standard. 

Sessions: Not individual records. Owned by third party. Banks records or hospital’s records. Have to be relevant to investigation of someone involved in terrorism or national security matters. Has to have been approved by FISA court.  Could be manifest for Amtrak.

DiFi: FBI does not support this amendment. Would end several classified and critical investigations. Authorized investigations. Used in authorized investigations. Standard for me is this not interfere in existing investigations.

Feingold: Welcome comments about getting everyone to agree. As to administrative subpoenas, DEA not subject to mandatory secrecy, must be issued in criminal investigation, by definition narrower than intelligence investigation. Feinstein in 2006 said relevant standard would permit fishing expeditions. [Suggests Obama and Specter did too] In 2005 proponents said never been misused. That’s not true, they have been misused, recommend my colleagues get classified briefing.

Kyl: Turns on its head whole point of investigation. To seek clues. You don’t have proof when you first start investigation.

Whitehouse: Associate myself with Chairman Feinstein. Classified materials that support her concern that would interfere with investigation. Earlier vote on related subject was unanimous, but this one not.

Feingold: Aware of that information. I strongly disagree that three-part standard would cause consequences that they say it would.

Cardin: Why two standards, one for library records. I understand outcry over library records. 

Kyl: Unwarranted and irrational concern about library records as a result of blogs and so on. Important but not that important. 

Cardin: Are you saying today we don’t have an effective standard if we need library records. 

Durbin: Kyl raised interesting question. Why aren’t more people complaining about this. Most innocent Americans don’t have a clue what is going on. Own records can be and may be investigated. One group, American Library Association, we’ll stand up for everybody. You have characterized their efforts as unwarranted and irrational. Constitutional. Because they stood up for principle, we’re going to "cut them loose." If all hospitals come together to say we’re going to protect records of our patients, if they make enough noise we’re going to cut them lose? It was passed unanimously four years ago, and should be passed. Reasonable grounds to believe activities of suspected agent foreign power, records would have to be produced. Standard consistent with Constitution. 

Sessions: No particular legal justification, none, that librarians have more protection for holding records in their building than a bank. They got it in their heads that it was sort of religious thing for them, I think Ashcroft had it right.

[Apparently Sessions has never heard of the First Amendment]

Sessions: Individual subject computers are not subject to this. I don’t think this is necessary, I think it’s a mistake.

Feingold: Concerning sneak and peek. Would require that subjects of sneak and peak be notified within seven days. Makes no other change to current statutory scheme. Allows court to allow longer period. Creates important presumption that notification occur within seven days. In unanimous legislation in 2005. [Names all the people, including Feinstein and Obama, have supported before.] In years prior to PATRIOT, required that search without notifying. In some cases, would compromise subject of search. Sneak and peek could be authorized but must give notice within 7 days. [Reads from court opinion] Why shouldn’t we at least presumptively allow notice within 7 days. Big difference between 7 days and a month. Use of sneak and peeks gone up considerably in last few years.

Leahy: Seek a roll call?

Sessions: We debated this at some length. 

Amendment passes.

Kyl introduces amendment amending criminal identity theft statute. 

Leahy: Haven’t heard anything from govt. Concerned about adding new criminal offenses. We’d be amending federal statute.

Schumer: When documents can be emailed, it’s become a real problem. This amendment would deal with that problem. People will go get their ticket on a false name, and go through clearance even if they’re on watch list. 

Cardin: Question. Currently, false identification covered. You want to add false travel documents. Is there a legal definition of travel document? Subway token to document that Schumer is talking about. If it’s identification already covered.

Leahy: I’d be willing to consider and pass it as a separate bill.

Schumer: You may not want to put a new area of the bill, if you would help us get it through the committee. 

Kyl: Definition is in amendment. Also need statement from FBI.

Whitehouse: On that amendment, would like to work with them on that. This is a new definition of what a travel document is. Not entirely comfortable that a person printing out boarding pass on home computer, or if you make a copy of it. Not clear that the definition is as crisp as it needs ot be.

Schumer: When you alter it for purposes of deceit. Would be happy to work with erudite Senator from Rhode Island.

Leahy: All Senators on this committee, regardless of party, are erudite.

[As if on cue]

Sessions: I do believe it would be a mistake to sunset NSL provision. Offer amendment to strike sunset. Essentially it would mean if we sunset this NSL provision and fails because of failure to reenact. Like to join with Kyl. Bog p system. End up refusing to pass it or asking for other bad provisions. Requirement previously kept FBI from using letters in early stages of investigation. 

Leahy: Commend Inspector General Fine, we have found where there have been abuses of PATRIOT. Beauty of sunset, forces us to do oversight that otherwise hasn’t been done. We are not changing the text. Simply putting in sunset.

Sessions: You’re correct about that. Not changing underlying text. We’ll be faced with this kind of circumstance down the road.  Amendment would be to strike 2c for the record. Complaints about NSLs, under exigent circumstances, was supposed to file NSL document. I think FBI is taking it very seriously.

Kyl: Abuses found without sunset. We’re talking about serious authorities that go away unless we pass a bill.

DiFi: I would oppose the amendment. Trying to put forward balanced bill. I do not believe there’s a national security impact from sunset. Would occur at same time as rest of sunsets. Still remains concerns about NSLs. Have increased mightily in number. With the view that this does not impact national security, and the view that it does sunset at the same time as rest of bill. Oppose to motion.

Sessions: Fact that NSLs have been used that’s a good thing.

Feingold: Oppose this amendment. Want to specifically agree with Kyl’s statement that there have not been abuses,  not true of 215. I believe 215 has been abused as well. If there’s anything that should be sunsetted, it should be the one subject of embarrassing IG Report. Intend to offer an amendment that would make those changes. Will never forget when Director Mueller toldme that this report was coming out. Not just of something FBI did wrong, but our failure. 

Cardin: Oppose amendment. Two Congressional elections before this sunset will take effect. Formal mechanism in place, bring in administration. Part of our responsibility.

Coburn passes on sunset amendment.

Kyl: Introducing amendment to CIPA. Moussaoui sought access to enemy combatants. Govt refused on national security grounds. Disrtict court ordered production of witnesses. Would allow govt to get interlocutory appeal, wouldn’t have to incur sanctions.

Kyl: But Feingold got to introduce amendment. 

Feingold: It was Title 18, it was part of PATRIOT.

Leahy: This is such a sweeping change to CIPA statute. 

Kyl: Very high profile case, simply granting interlocutory appeal. 

Leahy: Sneak and peek we agreed to unanimously. This is something different.

Feingold: We had a hearing last week on sneak and peek.

Kyl: I’ve been invovled in markup of health bill. 

Feingold: Pretty extensive conversation with Kris about it. 

Kyl: Three of my colleagues are where I’m supposed to be here.

Leahy: 9:30 11-12 people here. How many amendments on both sides?

Sessions: I’d hate for us to inadvertently pass legislation that impacts their operations. 

Leahy: Trying to get views is an exercise in futility. If we could have an understanding that we would vote on final passage of this within one hour. Kohl has a bill he wishes to bring up. That time does focus attention. We all know when bill is finally on the floor managers package anyway. Objection to final passage…

Feingold: Mr. Chairman. I have two or there more amendments.

Leahy: Are there amendments that can be voted on this morning.

Feingold: I’d be willing to offer one of mine now. 

Leahy: We’ll meet next week, quickly.

Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.

Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal.  Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.

As a reminder, here was my summary of Leahy’s bill:

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

In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:

I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.

[snip]

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.

That is, in a bid to pitch his bill as a “balance” between what Feingold and Durbin advocate and what DiFi (as Chair of SSCI) and the Republicans want, Leahy pointedly integrated aspects of Feingold’s bill into his own.

This is a superb discussion of the two bills. It describes these things that JUSTICE does that Leahy’s bill does not:

• Adds a “least intrusive means” to Section 215 orders
• Sharply curtails the kinds of records available through National Security Letters
• Limits the use of “sneak and peak” powers
• Restricts “material support” charges for terrorism to those who knowingly do so
• Prohibits bulk collection of data under FISA
• Prohibits reverse targeting under FISA
• Repeals retroactive immunity for telecoms that helped Bush break the law with warrantless wiretapping

Now, as I pointed out the other day, Leahy and Feingold (and Dodd and Merkeley) introduced a stand-alone bill repealing retroactive immunity, which leaves these other six bullets as the main aspects of JUSTICE that Leahy, the Chair of SJC, has not explicitly included in his “balanced” approach to reauthorizing PATRIOT.

Now, I’m going to do some more work on these two efforts. But in the meantime, please call the following members of SJC to encourage them to support integrating measures from Feingold’s JUSTICE in tomorrow’s mark-up. (Dick Durbin is cosponsor of Feingold’s JUSTICE bill, so he’s not on this list.)

Patrick Leahy: (202) 224-4242
Herb Kohl: (202) 224-5653
Dianne Feinstein: (202) 224-3841
Chuck Schumer: (202) 224-6542
Ben Cardin: (202) 224-4524
Sheldon Whitehouse: (202) 224-2921
Amy Klobuchar: (202) 224-3244
Ted Kaufman: (202) 224-5042
Arlen Specter: (202) 224-4254
Al Franken: (202) 224-5641

The first thing Russ Feingold said in last week’s hearing on the PATRIOT Act renewal is that there’s something about the way the PATRIOT Act works that has not been made public.

Mr. Kris, let me start by reiterating something you and I have talked about previously. And that’s my concern that a critical information about the implementation of the PATRIOT Act has not been made public, information that I believe would have a significant impact on the debate. I urge you to move expeditiously on the request that I and others on this Committee have made before the legislative process is over.

In his statement, Feingold reiterates that concern, comparing the current debate with the earlier debates on FISA and PATRIOT reauthorization.

I welcome the administration’s openness to potential reforms of the Patriot Act and look forward to working together as the reauthorization process moves forward this fall.

But I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate.

[snip]

This time around, we must find a way to have an open and honest debate about the nature of these government powers, while protecting national security secrets.

As a first step, the Justice Department’s letter made public for the first time that the so-called "lone wolf" authority – one of the three expiring provisions – has never been used. That was a good start, since this is a key fact as we consider whether to extend that power. But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

You get the feeling that Feingold wants to draw attention to this aspect of the Section 215 of the PATRIOT Act that hasn’t been made public, huh?

Before we look at what that might be, let me attend to the earlier references Feingold makes. He references the debates on FISA in 2007 and 2008.

During the debate on the Protect America Act and the FISA Amendments Acts in 2007 and 2008, critical legal and factual information remained unknown to the public and to most members of Congress – information that was certainly relevant to the debate and might even have made a difference in votes. 

We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.

Then there’s Feingold’s reference to information not disclosed during the last reauthorization of PATRIOT.

And during the last Patriot Act reauthorization debate in 2005, a great deal of implementation information remained classified. 

Lisa Graves addressed that issue in her testimony before SJC.

But, in November 2005 as the Patriot Act was being delayed by a mounting filibuster in the Senate, an investigative piece by the Washington Post’s Bart Gellman quoted government sources reporting that the number of NSL requests had exploded to over 30,000 per year.4 The Justice Department harshly attacked the article in a letter to then-Chairman Specter signed by William Moschella, and calling the 30,000 figure “inaccurate.” I myself heard from a number of staff and reporters that the administration had absolutely denied that anywhere near this number of demands had been made, just as the NSL powers were being debated on the Hill and in public. Congress responded to the controversy by requiring an audit of the number of times the power was being used.

That is how in 2007 we learned that the true number of NSL requests issued in 2004, the year before the article was published, was over 56,000. 5 The number reported in the press was not too big; it was too small! The administration attempted to sidestep this dispute by asserting that its statements were based on counting only the number of letters and not the number of requests. Yet, administration officials had to know that individual letters often had multiple requests. To this day, there has been no real accountability for the way the public was misled by DOJ at the crucial moment in this debate.

In another instance of deliberately distorting the public debate in 2005, while the prior administration was asserting that the government was not interested in library records it was simultaneously seeking records from the Library Connection in Connecticut and gagging those librarians from telling Congress
and rebutting the misleading assertions of the government.

So the Administration was lying, blatantly, both about what they were collecting and how much they were collecting.

Now go back to Feingold’s reference on Section 215. csoghoian notes the following in my last thread:

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.

Now, csoghoian suggests the collection might relate to geographic location. Lisa Graves offers some other, more generalized suggestions about what this Section 215 collection might be.

One way to think of the scope of the power covered by Section 215 of the Patriot Act is to think of a giant file into which literally “any tangible thing” held by a third party about you can be put, that is, can be secretly obtained by government agents. Any tangible thing. It could be your DNA, your genetic code, from tests taken by your doctor for your health. It could be records about the books you buy or read. It could be information about websites you have visited. To search your home for these types of personal records, the government would have to have a warrant based on probable cause of wrongdoing, but to obtain them from your doctor or others you do business with, such as your internet service provider or your employer, no such probable cause is required under the statute since 2001.

In fact, any tangible thing about you can be secretly obtained without any evidence that you are a suspected terrorist. Virtually everything about you can be seized through secret 215 orders if you have any contact with a suspect. On the surface that might sound reasonable, but when you think it through you can see that every day through work or business you come into contact with dozens of people, at work, at schools, at conferences, in the cafeteria, at sporting events, at the mall, and if any one of them is the subject of an investigation your sensitive, personal private information might get swept up and kept in government files for decades. That amounts to hundreds of people a year and mere contact, however brief, can trigger this law, which requires the secret Foreign Intelligence Surveillance Court to presume your sensitive personal records are relevant to an investigation and grant a secret access.

And, under the law as amended in 2006, your employer, doctor, or librarian, for example, who may have known you since childhood, cannot ever tell you your privacy has been breached without going to court, even if you are never charged with any wrongdoing. And, it bars them from even challenging such orders for your personal, private information for a year.

This suggests a database of information collected on simple association. Several people in the hearing made it clear that it’s not just the collection of this information, but also its retention, that is a problem. 

Now that doesn’t make it clear how they’re using Section 215. But it suggests the collection and retention of a lot of information on people, including information on innocent people who have had the misfortune of contacting a suspect.

Sort of like their electronic communications are being collected under the FISA programs we haven’t been told about.

So as we discuss renewing and fixing JUSTICE, keep in mind that Feingold is also trying to rein in a practice that implicates the "tangible data" of a lot of people who have had potentially insignificant contacts with terrorist suspects.