Ashcroft Testifies Regarding PATRIOT Act

June 8, 2004. The Senate Judiciary Committee held a hearing titled "DOJ Oversight: Terrorism and Other Topics". Attorney General John Ashcroft was the sole witness. The one technology related subject discussed in detail at this hearing by Senators and Ashcroft was the surveillance related provisions of the USA PATRIOT Act, and proposals to expand the PATRIOT Act.

Ashcroft (at right) wrote in his prepared statement that "We will continue to fight terrorism using all the tools at our disposal. As the Committee is aware, however, key provisions of one such critical tool -- the Patriot Act -- are currently scheduled to ``sunset´´ at the end of 2005. In our view, it is imperative that this ``sunset´´ not be allowed to take place. Instead, these provisions need to be renewed."

"The Justice Department and the American people have benefitted tremendously in preventing terrorism, thanks to the Patriot Act. This important bipartisan legislation removed the bureaucratic wall between law enforcement and intelligence."

The hearing included discussions of sunsetting generally, roving wiretaps, delayed notice of search warrants (also known as sneak and peak), and access to business records under the Foreign Intelligence Surveillance Act (FISA).

However, there was no discussion of the PATRIOT Acts's treatment of libraries as electronic communications service providers, or extending the provisions regarding pen register and trap and trace devices to electronic communications, such as e-mail.

The hearing also covered various legislative proposals, including those pertaining to lone wolf FISA orders, terrorism hoaxes, and administrative subpoenas.

Also, while Ashcroft spoke in general terms about terrorists' use of new communications technologies, there was no discussion of specific technologies, such as voice over internet protocol (VOIP) communications, push to talk, or encryption.

Background on the PATRIOT Sunsetting Issue. The full title of 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 passed by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

Title II of the PATRIOT Act, which addresses electronic surveillance, provides, at § 224, for the sunsetting of many of the provisions of Title II. It provides, in part, that "this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005." (Parentheses in original.)

Consequently, the following sections are scheduled to sunset:
  § 201 pertaining to "Authority to intercept wire, oral, and electronic communications relating to terrorism"
  § 202 pertaining to "Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses"
  § 203(b) pertaining to "Authority to share electronic, wire and oral interception information" of criminal investigations
  § 203(d) pertaining to sharing "Foreign intelligence information"
  § 204 pertaining to "Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication"
  § 206 pertaining to "Roving surveillance authority under the FISA"
  § 207 pertaining to "Duration of FISA surveillance of non-United States persons who are agents of a foreign power"
  § 209 pertaining to "Seizure of voice-mail messages pursuant to warrants"
  § 212 pertaining to "Emergency disclosure of electronic communications to protect life and limb"
  § 214 pertaining to "Pen register and trap and trace authority under FISA"
  § 215 pertaining to "Access to records and other items under the FISA"
  § 217 pertaining to "Interception of computer trespasser communications"
  § 218 pertaining to "Foreign intelligence information"
  § 220 pertaining to "Nationwide service of search warrants for electronic evidence"
  § 223 pertaining to "Civil liability for certain unauthorized disclosures"
  § 225 pertaining to "Immunity for compliance with FISA wiretap".

Several bills have been introduced that would affect the sunsetting of these and other sections. For example, Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, introduced S 1695, the "PATRIOT Oversight Restoration Act" on October 1, 2003. See, story titled "Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted" in TLJ Daily E-Mail Alert 757, October 14, 2003.

However, the bill which has the most support in the Senate is S 1709, the "Security and Freedom Ensured Act of 2003", or SAFE Act, introduced by Sen. Larry Craig (R-ID) on October 2, 2003. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

The Leahy and Craig bills would not only reaffirm that many of these sections will sunset, they would also add several additional sections for sunsetting:
  § 213 pertaining to "Authority for delaying notice of the execution of a warrant"
  § 216 pertaining to "Modification of authorities relating to use of pen register and trap and trace devices"
  § 219 pertaining to "Single-jurisdiction search warrants for terrorism"

In contrast, there is a bill, S 2476, sponsored by Sen. Jon Kyl (R-AZ) and others, that would extend all of the sunsetting provisions. Sen. Kyl used the hearing to promote his bill. It would provide simply that "Section 224 of the USA PATRIOT Act (18 U.S.C. 2510 note) is repealed." (Parentheses in original.)

Sen. Orrin Hatch (R-UT), the Chairman of the Committee, expressed his support for extending the sunsetting provisions of the PATRIOT Act.

Ashcroft stated during an exchange with Sen. Hatch that "The sunsetting provisions must not expire, unless we want to simply to -- if we want to let down the guard of the United States -- And if we were to expose the United States to -- to in some way reset the balance in favor of terror, we could do so by deciding not to re-enact those provisions of the PATRIOT Act. I think it would be a tragedy."

Sen. Jeff Sessions (R-AL) supports extending the sunsetting provisions, and opposes changes to the PATRIOT Act. He said that "I believe that the proposed changes in the Act that some have offered weaken the Act substantially. I think that we should not do that. I think we ought to take some time and go over every word of the Act. We can do that. But, in the end, I believe we should not make that change."

Sen. Craig and the SAFE Act. Sen. Sessions sat next to Sen. Larry Craig (R-ID) at the hearing. Sen. Craig is the lead sponsor of the leading bill to propose changes to the PATRIOT Act, the SAFE Act. He spoke in broad terms about the SAFE Act, without addressing any of its provisions.

"I am proposing changes in the PATRIOT's Act", said Sen. Craig (at left). "And we will look at those issues. Sen. Sessions has just said we will look at it in great detail. And we must."

"You see, I trust you. But I don't know about the next Attorney General, or the next Attorney General", he said to Ashcroft. "And therefore, we will not build the law based on trust."

"We gave you extraordinary powers", Sen Craig told Ashcroft. "But I do believe in safeguards. And I do believe there is an importance in asking for the right to proceed at certain times along the way. And that is all that the SAFE Act rightfully does."

He concluded that "Civil liberties in this country are the basis of our great country. And, while I respect you and trust you, I don't trust government. And I don't expect our citizens to, unless the laws are in place to make government to perform in the appropriate fashion."

Roving Wiretaps. Ashcroft brought up roving wiretaps in response to a question from Sen. Hatch. The Attorney General stated that "The tools of the United States PATRIOT Act, which were tools enacted by this Congress, have taken down the wall between the intelligence community and the law enforcement community. And that is an important amalgamation of information. And the best friend of prevention is information. If you have the right information, you can prevent. Without that information, you can't. In addition, the efficiencies provided in the Act, which provides, say, for the use of so called multi-point, or roving wiretaps, in matters relating to terrorism, really a makes a difference in our ability to monitor or surveil terrorists in way that we have long had the authority against drug dealers and organized crime figures."

Sen. Sessions also initiated a discussion of roving wiretaps at this hearing. He said that "I do not believe that the PATRIOT Act represents any major expansion of government power. It simply makes sure  you can utilize that power that has been approved constitutionally, against drug dealers and others, against terrorists."

Ashcroft agreed, and added that "These so called roving wiretaps provisions, where you can tap more than one phone of a single person, or if they threw one phone away, you can tap the next one. That has been in place since 1986 for drug traffickers."

Finally, Ashcroft discussed roving wiretaps during his exchange with Sen. Russ Feingold (D-WI). Ashcroft stated that passing the SAFE Act would impair the DOJ's ability to conduct roving wiretaps. For example, he said that "The SAFE Act would require that we have an identity for a person before we can get a wiretap. Frequently, these terrorists are very good at concealing their identities, and disguising themselves."

§ 206 of the PATRIOT Act, pertaining to "Roving surveillance authority under the FISA", amended 50 U.S.C. § 1805. § 206 provides in full that "Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting `, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after `specified person'." § 206 is scheduled to sunset. Both the Craig and Leahy bills would also sunset this section.

Terrorism Hoaxes. Sen. Hatch asked Ashcroft about pending terrorism hoax legislation. See, S 2204, the "Stop Terrorist and Military Hoaxes Act of 2004", sponsored by Sen. Hatch, Sen. Schumer, Sen. Cornyn, and Sen. Feinstein on March 11, 2004. See also, S 1441, the "Protection Against Terrorist Hoaxes Act of 2003", and HR 1678, the "Anti-Hoax Terrorism Act of 2003".

Ashcroft stated that "Every time someone requires the Department to move to respond to a hoax, it takes valuable resources. There have been thousands of hoaxes, for instance, on anthrax alone. And, there should be significant penalties for individuals who divert the resources that can fight terror, away from the fight against terror, and are just responding to hoaxes."

FISA Lone Wolves. Sen. Hatch asked Ashcroft about pending FISA lone wolf legislation. See, S 113 and S 123.

Ashcroft said this. "Another item which I believe Senator Kyl and Senator Schumer and you have joined to work on is what is called the lone wolf amendment to FISA, which would provide the ability to surveil someone known to be involved in terrorism, but not being involved in terrorism with someone else, but doing it exclusively on his own or her own motion. It seems that our ability to surveil that kind of person should be commensurate" with the DOJ's ability under FISA to surveil terrorist groups.

The FISA currently only applies to foreign powers, and agents of foreign powers, including international terrorists. It also provides for the issuance of an order on a lower standard than is required for a Title III warrant, which is used in ordinary criminal investigations.

Administrative Subpoenas. Ashcroft was not asked about administrative subpoenas. Nevertheless, he advocated allowing them in terrorism investigations. President Bush has also stated as much in recent speeches.

Ashcroft said that "There are about, I think, about 335 different areas of the federal government, in which enforcement officials have the right to request on an official basis documents from businesses -- businesses records. Those are called administrative subpoenas. I believe that if those are requestable on the basis of health care fraud, and other things, that, for terrorism cases we would be well served to have that same kind of authority. This doesn't mean that there is an automatic ability to get them, if a person resists that, then the courts would -- decide whether or not it is merited."

Also, on September 9, 2003, Rep. Tom Feeney (R-FL) introduced HR 3037, the "Antiterrorism Tools Enhancement Act of 2003", for this purpose. See, story titled "Bush Proposes Expanded Administrative Subpoena Power" in TLJ Daily E-Mail Alert No. 738, September 12, 2003.

Section 215 and Library Records. Sen. Russ Feingold (D-WI) and Sen. Arlen Specter (R-PA) both expressed concerns at this hearing about § 215 of the PATRIOT Act. Although, neither asked Ashcroft to address this topic; and, he volunteered no information. The SAFE Act would revise this section to make it more difficult to obtain business records.

This section 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, or passing a bill such as Sen. Craig's, would raise the standards for obtaining a FISA order for business records.

While the statute does not expressly include library records, it is not disputed that library records could be obtained. However, John Ashcroft stated in September 2003 that it has not been used to obtain library records. Nevertheless, the American Library Association (ALA) has been the most vocal opponent of § 215.

Sneak and Peak. Sen. Feingold briefly expressed concerns about Section 213 of the PATRIOT Act. The section pertains to delayed notification of search warrants, which critics, such as Sen. Feingold, refer to as "sneak and peak". This section is not scheduled to sunset. However, there are legislative proposals to modify the procedure for obtaining delayed notification of search warrants, including the Leahy and Craig bills.

Other Issues. Ashcroft also discussed the death penalty. He said that "the seriousness of the threat of terrorism requires that we have available in circumstances were people are killed, and significant killing of individuals in terrorist activity, should result in the death penalty." He also argued for a presumption in favor of detention of terrorists.

Sen. Russ Feingold (D-WI) offered criticisms of the PATRIOT Act, and the Bush administration's characterization of the debate over sunsetting of PATRIOT Act provisions. His comments mirrored his comments of May 20, 2004, when he questioned Robert Mueller, the Director of the Federal Bureau of Investigation, at another hearing of the Senate Judiciary Committee. See, story titled "FBI Director Mueller Appears Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 904, May 24, 2004.

Sen. Feingold also argued that the DOJ is not providing the Senate Judiciary Committee with the records and information that it needs to review the PATRIOT Act.

Sen. Charles Schumer (D-NY) raised the issue of Section 215 and library records. He pointed out that the DOJ was long criticized on this subject, but Ashcroft waited a year before announcing that Section 215 had not been used in connection with library records. Sen. Schumer did not complain about this provision in the PATRIOT Act, and did not oppose its extension. Rather, he said that DOJ "secrecy is the issue here".

Sen. Mike DeWine (R-OH) addressed the Foreign Intelligence Surveillance Act (FISA) process. He said that requests for FISA orders have increased since the terrorist attacks of September 11, 2001, and that the application process is now too long and slow. It argued that the DOJ must devote more resources to this process, and prioritize its requests for FISA orders. Ashcroft responded that the DOJ is prioritizing.

Sen. John Edwards (D-NC) attended part of the hearing, but said nothing. Sen. Ted Kennedy (D-MA) was loud and hostile in his interrogation of Ashcroft. But, he had nothing to say about any technology related issues.