On February 14, 2011, the House voted to extend certain provisions of the PATRIOT Act.
The PATRIOT Act was originally passed to give law enforcement officials some of the same investigative tools for terrorism that have been used for some time to combat organized crime and illegal drugs. There have been specific terrorist attacks that were stopped because of the investigative tools authorized by the law. We should not abandon those tools lightly, especially when there continues to be too much misunderstanding about them and about the safeguards included in the Act. And we should review them frequently to make sure we strike the right balance between protection of civil liberties and the need to give law enforcement the resources to effectively do its job.
Some folks are concerned about the PATRIOT Act, and the recent extensions of certain provisions. Below you can find some background information that you may find helpful.
The 1978 Foreign Intelligence Surveillance Act (FISA) provides a framework by which government agencies obtain authorization to conduct electronic surveillance or physical searches in foreign intelligence matters. Shortly after 9/11, Congress amended FISA through the PATRIOT Act to provide enhanced investigative tools and increase the circumstances by which the government can obtain information.
These expanded authorities prompted considerable debate regarding the balance between national security and civil liberties and consequently the three most controversial provisions were sunset.
Expiring Provisions (U.S. House voted to extend on February 14, 2011):
• “Lone Wolf” (Section 6001 of the Intelligence Reform and Terrorism Protection Act) - simplifies the standard needed to obtain a FISA court order to target a non-U.S. individual suspected of international terrorism. This allows the government to subject an individual terrorist to the same type of surveillance used to monitor foreign intelligence agents or members of an international terrorist organization. Previously, the government needed to establish a clear link between the individual and a specific foreign power in order to classify the individual as an “agent of a foreign power.” Under this provision, any engagement in terrorism results in a presumption that the individual is an agent.
• “Roving” Wiretaps (Section 206 of the PATRIOT Act) – adds flexibility to wiretaps by allowing multipoint taps that follow a target, not the location or device. Previously, electronic surveillance was limited by the requirement that the government clearly identify the location targeted, which allowed suspects to circumvent wiretaps. While the ACLU has argued privacy concerns with this provision, it is important to note that a FISA court must find that there is probable cause to believe that the target is an agent of a foreign power before approving. Furthermore, in an age where terrorists can use multiple mobile communications devices with ease, it allows the order to cover any device the suspect may use. Without roving wiretap authority, investigators would be forced to seek a new court order each time they need to change the location, phone or computer that needs to be monitored.
• Business Records (Section 215 of the PATRIOT Act) - broadens the types of records and tangible items that can be made available to the government under FISA. Previously, intelligence officials had to meet a much higher standard than required in criminal investigations. Opponents have argued that the provision is too broad and allows “fishing expeditions” by simply allowing investigators to classify the request as a terrorist investigation. Libraries in particular offered intense criticism of this new FISA authority despite having no specific mention in the law. Requests made under this section are actually subjected to more judicial scrutiny than in criminal investigations. Additionally, the Attorney General is required to inform House and Senate Intelligence Committees every six months about the use of this provision.
Importance to Law Enforcement:
Before the PATRIOT Act, law enforcement tools created decades ago were crafted for rotary telephones - not email, the Internet, mobile communications or voice mail. The idea behind the PATRIOT Act was to evolve the law as technology had grown.
It allowed the Department of Justice to use the same tools available to combat mobsters and drug dealers on terrorists. These tools are now used to gather intelligence and to prevent terrorists from unleashing more death and destruction within our country. They help law enforcement and intelligence professionals “connect the dots" and save innocent lives.
The PATRIOT Act was enacted with a handful of basic objectives to fight terror by bringing the law up to speed with technology and equip our law enforcement and intelligence communities with the tools they need:
• Law enforcement needed a strengthened and streamlined ability for our intelligence-gathering agencies to gather the information necessary to disrupt, weaken and eliminate the infrastructure of terrorist organizations. It also needed the authority to share vital information with our national security agencies in order to prevent terrorist and future terrorist attacks.
• It was vital to make fighting terrorism a national priority in our criminal justice system. Before the PATRIOT Act, the law made it easier to prosecute members of organized crime than to crack down on terrorists who can and did kill thousands of Americans in a single day. The same was true of drug traffickers and individuals involved in espionage. It was vital to ensure our laws treated terrorists with at least the same severity as criminals.
• It enhanced the authority of the Immigration and Naturalization Service to detain or remove suspected alien terrorists from within our borders. Any alien providing material support to an organization that he or she knows or should know is a terrorist organization is now subject to removal from the United States thanks to the PATRIOT Act.
• It was critically important that law enforcement be able to follow the money in order to identify and neutralize terrorist networks. We are now able to follow the money trail to the terrorists and to freeze the money to disrupt their actions.
The PATRIOT Act gave us the tools we needed to integrate our law enforcement and intelligence capabilities to win the war on terror. Our ability to prevent another catastrophic attack on American soil would be more difficult, if not impossible, without the PATRIOT Act. It has been the key weapon used across America in successful counter-terrorist operations to protect innocent Americans from the deadly plans of terrorists.
With these legal tools and our prevention strategy, we can point to steady progress in America's war against terrorism.
As a result of these important provisions, we have targeted terrorists here at home and developed detailed intelligence on terrorist threats. We have arrested and detained countless potential terrorists. We have shut down the terrorist financial infrastructure. We have built a long-term counter-terrorism capacity with more FBI agents and federal prosecutors dedicated to counter-terrorism and counter-intelligence and the establishment of a Joint Terrorism Task Force. Notwithstanding the desperate attempts of our enemies, no major terror attack has occurred on American soil since September 11, 2001.
