Talk:Patriot Act/History

Background

The Patriot Act made a number of changes to U.S. law. Key Acts that were changed, along with a number of others, were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1968 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act.

Title II of the Patriot Act made a number of significant changes to the laws relating to foreign intelligence surveillance, of which the main two Acts that were affected were FISA and the ECPA. After the Watergate scandal, the Church Committee discovered and criticised abuses of domestic spying by the NSA, FBI and CIA. There was widespread congressional and public outcry, resulting in Congress passing FISA in 1978. FISA governs the way in which U.S. intelligence agencies may conduct wiretaps and the interception of communications in order to gather foreign intelligence, and it established the Foreign Intelligence Surveillance Court (FISC) and a FISC Court of Review. These courts administer foreign intelligence related applications for access to business records, wiretaps, microphone "bugging", physical searches and the use of pen registers and trap and trace devices. The Act does not apply to U.S. citizens, but is limited to dealings with foreign powers and citizens.

The ECPA was an amendment to title III of the Omnibus Crime Control and Safe Streets Act of 1968, which is sometimes known as the "Wiretap statute". The Wiretap statute was mainly the result of two Supreme Court cases — Katz v. United States and Berger v. New York — and from criticism by the Church Committee of the actions of COINTELPRO (Counter Intelligence Program). The Supreme Court found in both Katz v. U.S. and Berger v. New York that the Fourth Amendment search and seizure protections prohibited warrantless wiretaps. COINTELPRO was a program of the FBI aimed at investigating and disrupting dissident political organizations within the United States, and the operations of 1956-1971 were broadly targeted against organizations that were (at the time) considered to have politically radical elements. These included those whose stated goal was the violent overthrow of the U.S. government (such as the Weathermen), non-violent civil rights groups such as Martin Luther King Jr.'s Southern Christian Leadership Conference and violent groups like the Ku Klux Klan and the American Nazi Party. The Church Committee found that most of the surveillance was illegal. Consequently Title III of the Omnibus Crime Control and Safe Streets Act, though noting that wiretaps and interception of communications are a vital part of the law enforcement, found that wiretapping had been undertaken without legal sanction and were being used to overhear private conversations without consent. These conversations were then being used as evidence in court proceedings. In order to protect the integrity of the courts while also ensuring the privacy of citizens was not violated the Act provided a legal framework within which wiretaps and interceptions of communications could be used. The Act requires a court order authorizing the use of such measures against U.S. citizens, with penalties for those who do not get such authorization. The notable exception to these orders is in section 18 U.S.C. § 2511(3), which makes an exception to the restrictions of wiretaps in cases where the President must take measures to protect the U.S. from actual or potential hostile actions from a foreign power. However, when Title III was established telecommunications was in its infancy. Since that time, many advances were made. The ECPA extended Title III to protect wire, oral and electronic communications while in transit, as well as protecting stored electronic of communications. It also extends the prohibition of the use of pen register and/or trap and trace devices to record dialling, routing, addressing, and signalling information used in the process of transmitting wire or electronic communications without a search warrant.

The Patriot Act has a whole title devoted to prevention of money laundering, and it made changes to the Money Laundering Control Act (MLCA). This Act was an amendment to the Bank Secrecy Act (BSA), which was passed by Congress in 1970 and is designed to fight drug trafficking, money laundering and other financial crimes. The BSA requires financial institutions to keep records of cash purchases of negotiable instruments, file reports of cash transactions exceeding a daily aggregate amount of $US10,000, and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The MLCA, passed in 1986, further enhanced the BSA by making it a crime to structure transactions in such a way as to avoid BSA reporting requirements.

Immigration law was also tightened under the Patriot Act. The Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter Act, was passed by Congress in 1952 and was designed to restrict immigration into the U.S. It allowed the government to deport immigrants or naturalized citizens engaged in subversive activities and also allowed the barring of suspected subversives from entering the country. The Act is codified under Title 8 of the United States Code, which primarily governs immigration and citizenship in the United States. Prior to the INA, a variety of statutes governed immigration law but were not organized within one body of text. The Act was later modified by the Immigration and Nationality Act of 1965, and then by the Immigration Reform and Control Act of 1986. Since the Patriot Act, Title 8 has been modified even further by various Acts, including the Real ID Act of 2005.

September 11, 2001 terrorist attacks

On September 11, 2001, terrorists attacked New York City and caused the destruction of the World Trade Center. In response President George W. Bush declared a War on Terror. Soon thereafter, Senators from both sides of politics started working on legislation that would give law enforcement greater powers to prevent and investigate terrorism in the United States. These were watched carefully by several groups, include the Electronic Frontiers Foundation (EFF), the UCLA and the Centre for Democracy and Technology (CDT).

According to The Washington Post, Viet D. Dinh, Assistant Attorney General of the United States started work on amendments to the law that would increase the authority of Federal Agencies. The Post reported that Dinh understoond that "[t]he charge [from John Ashcroft] was very, very clear: 'all that is necessary for law enforcement, within the bounds of the Constitution, to discharge the obligation to fight this war against terror'". Over the next few days, Dinh and others worked through a number of issues that had law enforcement agencies had been unhappy for some time. Meanwhile, James Dempsey, of the CDT, was trying to contact Senators in order to speak to them about their concerns that civil liberties might be trampled in the rush to push through legislation. According to Dempsey, this was not easy. He said that if it was hard enough to get their attention, but "[even if] you [did,] some members of the House and Senate were, 'Don't bother me with the details.'"

Senate Amendment 1562: Combatting Terrorism Act of 2001

The first anti-terrorism bill to be introduced after the attacks was on September 13 by Orin Hatch, in the form of Senate Amendment 1562 that modified an appropriations bill for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies. This had been drafted after Hatch consulted with Senators Dianne Feinstein, Jon Kyl and Chuck Schumer.

Morton Halperin, a former head of the Washington office of the ACLU had got wind of the bill before it was proposed in the Senate and on September 12 sent an email to a number of representatives of civil liberty organisations, including James Dempsey and Marc Rotenberg of the Electronic Privacy Information Center (EPIC). He wrote that:

"There can be no doubt that we will hear calls in the next few days for congress to enact sweeping legislation to deal with terrorism. This will include not only the secrecy provision, but also broad authority to conduct electronic and other surveillance and to investigate political groups... We should not wait."

The amendment, entitled Combatting Terrorism Act of 2001 covered a number of areas that would later be dealt with in the Patriot Act. Among it's proposed measures, it ordered a report on the readiness of the National Guard to preemptively disrupt domestic acts of terrorism that used weapons of mass destruction, called for long-term research and development into terrorist attack as well as a review of the authority of Federal agencies to address terrorist acts and proposed a change that would have allowed the CIA to recruit terrorist informants as well as allow law enforcement agencies to disclose foreign intelligence that was discovered through wiretaps and other interception methods. The amendment also proposed a Sense of Congress that not enough was being done to impeded and investigate terrorist fundraising, and sought to increase measures to prevent the laundering of the proceeds of terrorism. During the debate, Senator Patrick Leahy urged restraint, asked for more precise figures on how much professional indemnity would cost and expressed concern at the proposed changes to Wiretap statute. Leahy was particularly concerned that the amendment was being rushed through the Sentate, and stated that,

"If we are going to change all these things, if we are going to direct the Director of the CIA and, in effect, direct the President to change the rules of the CIA, something the President could have them do just like that, if the President really wants to — if we are going to do all that here, with no hearing, what does this do to help the men and women who were injured or killed in the Pentagon — and their families? What does this do to help the men and women in New York and their families and those children who were orphans in an instant, a horrible instant? Hundreds, perhaps thousands, of children became orphans instantaneously. What does that do for them?"

During debate on the bill, it was proposed that a sense of the Senate be given regarding discrimination against Arab Americans. This was later to form the basis of section 101 of the final Patriot Act.

Later, the EFF wrote that they found that the "[wiretap, trap & trace and pen register] changes [made by SA 1562] are... either unnecessary or overreaching."

Public Safety & Cyber Security Enhancement Act

Another bill was later proposed by Senator Lamar Smith on September 20. That bill was the Public Safety and Cyber Security Enhancement Act of 2001. It's main focus was on the unauthorized access of protected computers, and proposed making modifications to the laws surrounding cable subscriber privacy, as well as various changes to pen register and trap & trace laws. The bill would have made an exception for foreign intelligence gathering in the laws that require a court order necessary for pen register and trap & trace surveillance. It also would have removed restrictions on the prohibition of gaining access to cable subscriber records and only prohibited the disclosure of viewing patterns of cable television subscribers.

Intelligence to Prevent Terrorism Act and Anti-Terrorism Act

The next bill to be proposed was by Senator Bob Graham and cosponsored by Senator Jay Rockefeller on September 23, though it had been in planning with the Senate Select Committee on Intelligence for several months. The proposed bill was entitle the Intelligence to Prevent Terrorism Act of 2001, and it was introduced to the Senate along with another bill by Senator Graham, which was S.1449, which proposed the establishment of a National Office for Combatting Terrorism in the Whitehouse. The Intelligence to Prevent Terrorism Act proposed amendments to the National Security Act of 1947 that would establish requirements and priorities for, and manage the analysis and dissemination of, all foreign intelligence collected under FISA. It also proposed to amend the National Security Act to make international terrorist activities part of the scope of foreign intelligence. It authorized any officer or employee of the intelligence community to establish and maintain intelligence relationships to acquire information on terrorists and terrorist organizations. The bill would have provided temporary authority to defer the submission to Congress of certain reports on intelligence and intelligence-related matters. Another change that was proposed in the bill was that the duration of an order for the electronic surveillance or physical search of an agent of a foreign power be extended.

The bill proposed a number of changes relating to the Director of Central Intelligence (DCI). The most significant change propsoed was to require the Attorney General or head of any other Federal department or agency to disclose to the DCI any foreign intelligence acquired in the course of a criminal investigation. However, it also would have required that the DCI and Secretary of the Treasury jointly report to Congress on the whether it would be a good idea to reconfigure the Office of Foreign Assets Control and its Foreign Terrorist Asset Tracking Center to provide for the analysis and dissemination of foreign intelligence relating to the financial capabilities and resources of international terrorist organizations. It would also have required the DCI to establish and maintain a National Virtual Translation Center for timely and accurate translations of foreign intelligence for elements of the intelligence community. Another area it covered was a proposal to make the Attorney General provide a program of training to Government officials regarding the identification and use of foreign intelligence.

Meanwhile, Reublican Senators Hatch and Spector, along with Democrat Senator Leahy had been working with Attorney General John Ashcroft on a draft bill, called the Anti-Terrorism Act of 2001. This draft was to later be introduced as the PATRIOT Act and would be the basis of the final USA PATRIOT Act. Both the bill introduced by Senator Graham and the proposed Anti-Terrorism Act drafter were referred to the Select Committee on Intelligence. Among other things, the administration draft proposed extending roving wiretaps from the sole domain of domestic agencies and into the domain of foreign intelligence surveillance; expanded the use of wiretaps from phonelines to Internet technology; made it possible for more agencies to disseminate wiretap information; expanded the scope of surveillance subpoenas and allowed subpoenas broader access to personal records (it included"books, records, papers, documents, and other items"). Many of the most controversial aspects of the USA PATRIOT Act were first part of the draft bill.

During the senate hearing, Vicki Divoll, the General Counsel for the Select Committee, stated that she found it doubtful that it was the internal CIA regulations that caused difficulties with establishing and maintaining relationships with known terrorist suspects and that it might instead be because such targets are difficult to recruit. Her colleague, Steven Cash, also clarified that the purpose of setting up the Foreign Terrorist Asset Tracking Center was not to try to change the standards for such things as freezing assets or acting on a Suspicious Activity Report but was rather to ensure that the Intelligence Community provided enough useful information to relevant policy makers.

The hearing received testimony from a number of other people. One was David Kris, who was the Associate Deputy Attorney General to the United States Justice Department. In general he was happy with the administration's proposal and the bill introduced by Senator Graham. His view was that the measures that extended surveillance of targets and the proposals to allow sharing of Title III wiretaps between foreign intelligence agencies and domestic agencies to be important improvements to the law. He pointed out that FISA trap and trace and pen register orders were actually quite difficult to apply for, and that in most cases it wasn't worth the effort to apply for these — instead he said that agencies applied for full content surveillance orders. Thus, he told the Committee that the bills' attempt at bringing FISA wiretap surveillance orders and subpoenas for records into line with their domestic equivalents was a good one. Jerry Berman, of the Center for Democracy and Technology, also provided testimony. His main concerns were that he believed that legislators and government officials believed that applying existing pen register legislation to Internet technology was a misunderstanding of the differences between the two communications technologies. He pointed out that a pen register gathered only information about where the communication was being communicated to (i.e. it records the phone number only and no content of the communications), whereas in many new technologies the transactional information often contains communication content (i.e. an an e-mail has a name and a subject line, often with the subject line having the whole content of the message in it). Berman's main concern was not to prevent pen register type traces on new technology, but on making sure that only transactional information was gathered in such surveillance. Another major concern was the removal of a "wall" seperating foreign intelligence agencies from sharing information with domestic agencies. His concerns was that the seperation was constitutionally necessary because surveillance conducted under FISA was allowed under a lower standard than the standard that applied to domestic surveillance orders (he noted that this included "showing of probable cause of criminal conduct, notice, and eventual adversarial scrutiny"), thus making the wall a constitutional necessity. Berman was thus unhappy that the bills proposed to allow foreign surveillance gathered under FISA be shared with domestic agencies.

Birth of the USA PATRIOT Act

There had been constant discussions and meetings between different parties about the Bush administration draft legislation. Senators Patrick Leahy, Orin Hatch and the Attorney General John Ashcroft were key figures in those discussions. A hearing before the Committee on the Judiciary was ajourned on September 25th. Attorney General Ashcroft stated his belief that U.S. laws failed to make defeating terrorism a national priority and that technology had dramatically outpaced current statutes.

Senator Thomas Daschle introduced the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 into the Senate as S.1510 on the 4th October, 2001. It had been worked on by Senators Daschle, Paul Sarbanes, Bob Graham, Trent Lott, Orin Hatch and Patrick Leahy. This bill was the precursor to the USA Patriot Act. Senator Leahy said the following about the bill:

I must say this bill is not the bill I would have written if I were the only one writing it. I daresay it is not the bill the distinguished Presiding Officer, one of the brightest and most accomplished people I know, would have written, if he were writing it. It is not the bill the distinguished chairman of the Banking Committee would have written if he were writing it. It is not the bill the distinguished ranking member, Mr. Hatch, would have written when he was chairman, if he was solely writing the bill. It is really not the bill that any one of the other Members would have written. We can't pass 100 bills.

We have tried to put together the best possible bill. Of course, Republican and Democratic colleagues must come together, and that is what we did.

I should point out that this is not the bill the administration, through the Attorney General, delivered to us and asked for immediate passage. We actually did the administration a favor because rather than take the bill they dropped in our laps and said pass immediately, we did something that apparently they had not done. We read it and were able to refine and supplement their proposal in a number of ways. We were able to remove a number of unconstitutional parts. The administration accepted a number of practical steps that I proposed to improve our security on the Northern Border to assist our State, Federal, and local law enforcement officers and provide compensation to the victims of terrorist acts and to the public safety officers that gave their lives to protect us.

Orin Hatch said of the bill that,

This has been a very difficult bill to put forward because there are all kinds of cross-pressures, all kinds of ideas, all kinds of different thoughts, all kinds of differing philosophies. We believe, with all kinds of deliberation and work, we have been able to put together a bill that really makes sense, that will give the Justice Department the tools it needs to be able to work and stamp out terrorist activity within our country. At least we want to give them the very best tools we possibly can.

We have tried to accommodate the concerns of Senators on both sides of the aisle. We have worked very hard to do so. We cannot accommodate everybody's concerns. As Senator Leahy has said, this is not a perfect bill. Nothing ever seems to be perfect around here. But this is as good a bill as can be put together, in a bipartisan way, in this area in the history of the Senate. I really feel good about it, that we have done this type of a job.

As I say, a lot of these provisions have been requested by the Justice Department and both Democrat and Republican White Houses for years. We took into consideration civil liberties throughout our discussions on this bill. I think we got it just right. We are protective of civil liberties while at the same time giving the tools to the law enforcement agencies to be able to do their jobs in this country.

I might mention that this bill encourages information sharing, that would be absolutely prohibited under current law, among various agencies of Government, information sharing that should have been allowed a long time ago, at least in my view.

It updates the laws with regard to electronic surveillance and brings those laws into the digital age, and brings them into an effective way so that we can, in a modernized way, protect our society, at least to the extent we can, from these types of terrorist activities.

Of course, little things, such as pen registers, trap-and-trace authority--we have been able to resolve these problems after years of problems."