On May 12 2011, Rep. Robert Scott introduced a new wrinkle to considerations of Patriot Act powers and their uses. We already know from reports to Congress that most uses of the Patriot Act have nothing to do with terrorism. But what, then, is the purpose of the Patriot Act?
In a House Judiciary Committee markup session this month for H.R. 1800, a bill to reauthorize Patriot Act powers for years to come, Rep. Robert “Bobby” Scott drew a distinction between the 4th Amendment constitutional standard, in which agents of the government must obtain a warrant after swearing that probable cause exists to suspect a criminal act, and the current standard under the Patriot Act, which is that agents of the government must only affirm that a search, seizure or course of surveillance is “relevant to an ongoing investigation.”
Rep. Scott drew committee members’ attention specifically to language in the Patriot Act that describes surveillance, search and seizure related to “foreign intelligence” investigations:
Now, furthermore, Mr. Chairman, it is pointed out that this is for foreign intelligence investigations. There is a huge difference from “foreign intelligence,” which includes terrorism, but it also includes all kinds of other things that you can be looking into that have nothing to do with terrorism, and you could be just digging up dirt on people and on foreign agents – and digging up dirt, gossip and everything else would be relevant to a foreign intelligence investigation.
If you are negotiating a trade deal with somebody and you can dig up some dirt on them, that might be helpful in the negotiations, which would make it relevant to a foreign intelligence investigation. If this had been limited to terrorism, that would be a different calculation, but this involves “foreign intelligence,” which is virtually without limitation.
As Robert Scott points out, while we are made to think of terrorism in public discussions of the Patriot Act, the opening provided by the qualification of “foreign intelligence” relevance is wide enough to drive a 737 through. As long as there is a tenuous connection to international relations of political or economic interest, could “foreign intelligence” be invoked to start up a search, seizure or surveillance program?
Details of government activities authorized under the Patriot Act are classified, so the public cannot know them directly. But the House Judiciary Committee is apprised confidentially of Patriot Act activities. Rep. Scott is a member of the House Judiciary Committee and therefore privy to such information. Given his unusual access to information, it is curious that Bobby Scott would go out of his way to mention the dangers of a looser-than-constitutional “foreign intelligence” qualification, even in hypothetical terms.