Remarks of Senator Russell Feingold on September 17, 2009, introducing S. 1686, the JUSTICE Act of 2009.
Mr. President, I am pleased today to introduce the Judicious Use of Surveillance Tools In Counterterrorism Efforts, or JUSTICE, Act of 2009. I have had the privilege of working closely on this bill with Senator Durbin, as I have on so many of these issues over the years, and I welcome the support of Senators Tester, Tom Udall, Bingaman, Sanders, Akaka and Wyden. I am also pleased that the bill has the support of organizations and activists across the political spectrum, from former Republican Congressman Bob Barr to the American Civil Liberties Union to the American Library Association.
At the end of this year, three provisions of the USA PATRIOT Act will sunset unless Congress acts to reauthorize them. In my view, Congress should take this opportunity to revisit not just those three provisions, but rather a broad range of surveillance laws enacted in recent years to assess what additional safeguards are needed.
The JUSTICE Act does just that: It takes a comprehensive approach to fixing the Patriot Act and the FISA Amendments Act, once and for all. It permits the government to conduct necessary surveillance, but within a framework of accountability and oversight. It ensures both that our government has the tools to keep us safe, and that the privacy and civil liberties of innocent Americans will be protected. Because we can and must do both. These are not mutually exclusive goals.
Indeed, the Department of Justice just this week acknowledged as much in a letter setting forth its views on Patriot Act reauthorization. The Department said: “We also are aware that Members of Congress may propose modifications to provide additional protection for the privacy of law abiding Americans. As President Obama said in his speech at the National Archives on May 21, 2009, ‘We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. Therefore, the Administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities.'”
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. 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. And during the last Patriot Act reauthorization debate in 2005, a great deal of implementation information remained classified. 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.
There can be no question that statutory changes to our surveillance laws are necessary. Since the Patriot Act was first passed in 2001, we have learned important lessons, and perhaps the most important of all is that Congress cannot grant the government overly broad authorities and just keep its fingers crossed that they won’t be misused. Congress has the responsibility to put appropriate limits on government authorities–limits that allow agents to actively pursue criminals, terrorists and spies, but that also protect the privacy of innocent Americans.
This lesson was most clear in the context of National Security Letters. In reports issued in 2007 and 2008, the Department of Justice Inspector General carefully documented rampant misuse and abuse of the National Security Letter, NSL, authority by the FBI. The Inspector General found–as he put it–“widespread and serious misuse of the FBI’s national security letter authorities. In many instances, the FBI’s misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies.” After those Inspector General reports, there can no longer be any doubt that granting overbroad authority leads to abuses. The FBI’s apparently lax attitude and in some cases grave misuse of these potentially very intrusive authorities is attributable in no small part to the USA PATRIOT Act. That flawed legislation greatly expanded the NSL authorities, essentially granting the FBI a blank check to obtain some very sensitive records about Americans, including people not under any suspicion of wrong-doing, without judicial approval. Congress gave the FBI very few rules to follow, and failed to adequately remedy those shortcomings when it considered the NSL statutes as part of the Patriot Act reauthorization process in 2005.
The JUSTICE Act, like the bipartisan National Security Letter Reform Act that I introduced in the 110th Congress, would finally provide the statutory safeguards needed to protect against abuse of NSLs. And it would remedy First Amendment violations in the NSL statutes that were identified last year by the U.S. Court of Appeals for the Second Circuit, in a decision where Justice Sotomayor participated on the panel.
Specifically, the JUSTICE Act restricts the types of records that can be obtained without a court order to those that are the least sensitive and private, and it ensures that the FBI can only use NSLs to obtain information about individuals with some nexus to a suspected terrorist or spy. It makes sure that the FBI can no longer obtain the sensitive records of individuals three or four times removed from a suspect, most of whom would be entirely innocent. It follows the road map laid out by the Second Circuit to make sure the gag orders that accompany NSLs do not violate the First Amendment.
It prevents the use of so-called “exigent letters,” which the IG found the FBI was using in violation of the NSL statutes. It requires additional congressional reporting on NSLs, and it requires the FBI to establish a compliance program and tracking database for NSLs. And it requires the Attorney General to issue minimization procedures for information obtained through NSLs, so that information obtained about Americans is subject to enhanced protections and the FBI does not retain information obtained in error.
The JUSTICE Act also fixes Section 215, one of the most controversial provisions of the Patriot Act and one of the three that is subject to the 2009 sunset. This provision permits the government to obtain court orders for Americans’ business records under the Foreign Intelligence Surveillance Act; it is often referred to as the “library” provision, although it covers all types of business records.
On Section 215, the legislation establishes a standard of individualized suspicion for obtaining a FISA business records order, requiring that the government be able to demonstrate the records have some nexus to terrorism or espionage, and it creates procedural protections to prevent abuses. The bill also ensures robust, meaningful and constitutionally sound judicial review of both National Security Letters and Section 215 business records orders, and the gag orders that accompany them.
The bill also ensures that Americans can feel safe in their homes by placing reasonable checks on the so-called “sneak and peek” search warrant provision of the Patriot Act. It would eliminate the overbroad catch-all provision that allows these searches to be used in virtually any criminal case, and it would shorten the presumptive time limits for notification that the search occurred. It also would create a statutory exclusionary rule, in recognition of the strong Fourth Amendment interests at stake with regard to this extraordinary exception to the usual requirement that law enforcement knock and announce themselves before executing a search warrant.
The JUSTICE Act also includes a number of reasonable safeguards to protect Americans’ private communications. It permits the FBI to use roving wiretaps under FISA, but provides safeguards to protect innocent Americans from unnecessary surveillance. It ensures that the FBI does not obtain sensitive information about Americans’ Internet usage without satisfying an appropriate standard, and subjects those authorities, called “pen registers and trap and trace devices”, to new procedural checks. It provides new safeguards for the Patriot Act provision on computer trespass, which allows computer owners who are subject to hacking to give the government permission to monitor individuals on their systems without a warrant.
The bill also addresses the FISA Amendments Act, FAA, which granted the government new, over-expansive surveillance authorities and provided immunity to any companies that cooperated with the blatantly illegal warrantless wiretapping program that went on for more than five years–and that the prior administration repeatedly misled Congress about. That legislation became law last year over my strong objection, but it is not too late for Congress to fix it.
I offered several amendments to the FISA Amendments Act on the Senate floor–amendments that would have helped to make sure that the privacy of Americans’ communications are properly protected. And now those amendments are part of the JUSTICE Act.
First, the bill would ensure that the FISA Amendments Act cannot be used to authorize the government to collect the content of all communications between the U.S. and the rest of the world. Under the FAA, millions upon millions of communications between innocent Americans and their friends, families, or business associates overseas could legally be collected, with absolutely no suspicion of any wrongdoing. The JUSTICE Act would ensure such bulk collection will never occur.
Second, the JUSTICE Act would include a meaningful prohibition on the practice of reverse targeting–namely, wiretapping a person overseas when what the government is really interested in is listening to an American here at home with whom the foreigner is communicating. It would do so by requiring the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S.
Third, the bill would create potential consequences if the government initiates surveillance under the FAA using procedures that have not been approved by the FISA Court, and the FISA Court later finds that those procedures were unlawful. Say, for example, the FISA Court determines that the procedures were not even reasonably designed to wiretap foreigners outside the U.S., rather than Americans here at home. Under the bill, the FISA Court would have the discretion to place limits on how the illegally obtained information on Americans can be retained and used.
Fourth, this bill includes a provision that will help protect the privacy of Americans whose international communications will be collected in vast new quantities. On the Senate floor last year, I joined with Senator Webb and Senator Tester to offer an amendment to provide real protections for the privacy of Americans, while also giving the government the flexibility it needs to wiretap terrorists overseas. And that amendment is in this bill.
And finally with respect to the FAA, the bill would repeal the grant of immunity to any companies that participated in the illegal NSA wiretapping program. Senator Dodd was a leader on this during debate on the FAA and deserves a great deal of credit for drawing attention to this issue. Granting immunity seriously undercut our statutory scheme, which relies on both the government and the private sector to follow the law in implementing surveillance techniques. That is exactly why the surveillance laws have long provided liability protection for companies that cooperate with a government request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, companies are supposed to refuse the government’s request, and they are subject to liability if they instead decide to cooperate.
This framework, which has been in place for 30 years, protects companies that comply with legitimate government requests while also protecting the privacy of Americans’ communications from illegitimate snooping. Granting companies that allegedly cooperated with an illegal program the retroactive immunity that was in the FAA undermines the law that has been on the books for decades–a law that was designed to prevent exactly the type of abuses that occurred. Repealing that provision helps bolster the statutory framework that has for so long helped to protect the privacy of Americans’ communications.
The JUSTICE Act also provides additional congressional and judicial oversight of the Foreign Intelligence Surveillance Act. It ensures that the FBI provides some limited public reporting regarding its secret intelligence surveillance authority under FISA. It would give courts more authority to oversee the process for determining whether and how criminal defendants against whom FISA-derived evidence is being used should get access to the underlying applications and orders so they can mount a challenge.
The last title of the bill simply ensures that the law labels as terrorists only those people who truly wish to do this country harm–not domestic protesters who engage in civil disobedience or people who provide humanitarian assistance.
These concerns are not new. “Sneak and peek”‘ searches, the need for reasonable limits on the FBI’s use of roving wiretaps, access to business records, and the overly expansive computer trespass authority were all issues I first raised in the fall of 2001 as some of the reasons why I believed the PATRIOT Act was flawed and threatened fundamental constitutional rights and protections. Eight years later, it is time to finally get this right. Again and again, the previous administration requested and the Congress provided vast new surveillance authorities with minimal checks and balances. Many of these new tools were appropriate, and passage of this bill would leave in place surveillance authorities that are dramatically broader than what existed prior to 9/11. But what has been missing–what this bill finally provides–is the assurances that these new authorities are tailored to our national security needs and subject to proper oversight. Every single one of the changes in this bill is reasonable, measured and justifiable. I urge my colleagues to support it.