Earlier today, the Senate Judiciary Committee met to consider amendments to S. 1692, a bill that would extend the Patriot Act, a law that has become infamous among supporters of the Constitution because of the massive abuses of Americans’ rights that have take place as a result of the extraordinary search and seizure powers it grants to federal law enforcement agencies.
Senator Dick Durbin of Illinois offered an amendment, HEN09A07, which would have set a simple standard for National Security Letters. Under the amendment, the FBI would retain the power to go search and seize personal information from Americans. The only restrictions placed on the National Security Letter power would be that the records searched and seized would have merely to pertain or to a foreign power or agent of a foreign power, be relevant to such an agent, or pertain to someone who has only been in contact with or even just be known by such an agent.
HEN09A07 was an extremely mild amendment. It did not end the unconstitutional application of National Security Letter searches and seizures that occur without warrants or judicial oversight as required by the Fourth Amendment. Who could have possibly voted against this amendment?
I called the office of the Majority in the Senate Judiciary Committee a few minutes ago, and confirmed that the following was the roll call vote on Durbin’s amendment:
Voting FOR Protections from National Security Letters
Senator Dick Durbin (D – Illinois)
Senator Russ Feingold (D – Wisconsin)
Senator Benjamin Cardin (D – Maryland)
Senator Arlen Specter (D – Pennsylvania)
Voting AGAINST Protections from National Security Letters
Senator Patrick Leahy (D – Vermont)
Senator Dianne Feinstein (D – California)
Senator Al Franken (D – Minnesota)
Senator Charles Schumer (D – New York)
Senator Sheldon Whitehouse (D – Rhode Island)
Senator Amy Klobuchar (D – Minnesota)
Senator Ted Kaufman (D – Delaware)
Herb Kohl (D-Wisconsin)
Yes, that’s right. 8 out of the 12 Democrats on the Senate Judiciary Committee voted against protecting Americans’ constitutional rights from known abuses of the Patriot Act. The following is a transcript of the speech Senator Dick Durbin gave explaining why the abuses of the Patriot Act called for a restriction of National Security Letter powers.
Mr. Chairman, I want to offer amendment HEN09AO7. This amendment would protect the constitutional rights of innocent Americans, by requiring that National Security Letters could only be issued when the FBI has reasonable grounds to believe there is some connection to a suspected terrorist or spy.
A National Security Letter (NSL) is a form of administrative subpoena that is issued by the FBI. We often hear it compared to a grand jury subpoena, but unlike a grand jury subpoena, an NSL is issued without the approval of a grand jury, or even a prosecutor, and unlike a grand jury subpoena, the recipient of an NSL is subject to a gag order at the FBI’s discretion.
The Patriot Act greatly expanded the FBI’s authority to issue these NSLs. An NSL now allows the FBI to obtain sensitive personal information about innocent American citizens, including library records, medical records, gun records, and phone records, even when there is no connection whatsoever to suspected terrorism or spy activities.
The Justice Department’s inspector general concluded that this standard ‘can easily be satisfied.’ This could lead, unfortunately, to government fishing expeditions that target innocent Americans.
For years, we have been told that there is no reason to worry about this broad grant of power to the FBI. In 2003, then-Attorney General John Ashcroft testified before this committee that librarians raising concerns about the Patriot Act were ‘hysterics’ and that ‘the Department of Justice has neither the staffing, the time, nor the inclination to monitor the reading habits of Americans.’ Just last week, former Attorney General Michael Mukasey criticized by saying ‘those who indulge paranoid fantasies of government investigators snooping on the books they take out of the library’.
We now know that the FBI, in fact, has issued National Security Letters for the library records of innocent Americans. For years, we were told that the FBI was not abusing this broad grant of power. Then, Chairman Leahy included a provision in the 2006 Patriot Act reauthorization, requiring Justice Department’s inspector general to investigate the FBI use of NSLs. The inspector general concluded that the FBI was guilty of ‘widespread and serious misuse’ of the NSL authority, and failed to report these abuses to Congress and a Whitehouse oversight board. The inspector general reported that the number of NSL requests has increased exponentially from about 8.500 the year before the enactment of the Patriot Act to an average of more than 47,000 per year, and that even these numbers were significantly understated due to flaws in the FBI’s database.
Now, I commend the Chairman for including in this bill, again, a provision requiring the inspector general to audit the FBI’s use of NSLs. Without these audits, we still wouldn’t know about the widespread and serious abuse of this authority. Clearly, it’s appropriate for the IG to continue its oversight, but that’s not enough.
Now that we know about these abuses, clear abuses of the rights of innocent Americans, we should place appropriate limits on this authority. That’s what my amendment would do. It would permit the FBI to issue a National Security Letter where there are reasonable grounds to believe that the records sought, number 1) pertain to a foreign power or an agent of a foreign power, 2) are relevant to the suspected agent of a foreign power who is subject of such authorized investigation or, 3) pertain to an individual in contact with or known to a suspected agent of a foreign power.
This is an extremely flexible standard, one already embraced by this committee at an earlier time. The FBI would have broad authority to obtain virtually any information, even tangentially connected, to a suspected terrorist or spy, but innocent Americans would enjoy protection if they have no connection whatsoever to a suspect.
This is a fundamental issue. In this country, the presumption is on the freedom and privacy of individuals. Government surveillance is supposed to be based on individualized suspicion.
An individualized suspicion standard for NSLs was included in the bipartisan SAFE Act, which I cosponsored with senators Feingold, Specter, and then-senator Barack Obama. Last week, I offered an amendment which would have required the FBI to follow this standard for a Section 215 order. As I said last week, in 2005, this committee approved this standard for Section 215 orders by an 18 to 0 vote, and the Senate then approved it unanimously. Nonetheless, last week, my amendment failed.
Let me remind my colleagues that Section 215 orders are different from NSLs. Unlike Section 215 orders, which are approved by the FISA court, the NSLs are issued without the approval of a judge. Unlike Section 215 orders, the inspector general has determined that there has been ‘widespread and serious abuse of NSLs’. We know this because the chairman required it, that we would be informed.
Now informed of widespread abuse, what will we do about it? Nothing? This amendment does something.
While this bill includes a 3-part standard for library records obtained by Section 215 orders, at least at this moment, there is no similar protection for library records obtained by National Security Letters. This double standard is especially puzzling, because the Justice Department testified to this committee last month that a Section 215 order had never been used to obtain library records. In contrast, National Security Letters have been used to obtain library records of innocent Americans. This bill contains no protections against this abuse. That’s why the American Library Association supports my amendment. I do not believe they are taking an hysterical position.
Mr. Chairman, I believe we can be safe and free. We can retain the expanded powers of the Patriot Act, but place reasonable limits on these powers to protect our most basic constitutional rights, which we have sworn to uphold as members of the Senate. That’s what my amendment would do for National Security Letters. I urge my colleagues to support it.