2010 and 2011 Patriot Act Skirmishes, Continued
Absent new authorization from Congress, the three remaining Patriot Act sunset provisions were set to expire in February 2010. Before tackling the Patriot Act reauthorization, however, as one of his first acts in office, President Obama ordered a review of the White House homeland security and counterterrorism structure.311 Short of merging the Homeland Security Council with the National Security Council or scrapping the homeland security advisor position, however, he decided only the HSC staff should be consolidated with that of the NSC.312
The Patriot Act sunset provisions that were up for renewal included roving wiretaps, surveillance of lone wolves, and seizure of tangible items. As this was an all Democrat-led Congress, President Obama’s administration did not anticipate a lot of opposition from the legislative branch. Both houses began hearings in September 2009.313 Soon after, the Senate Judiciary Committee approved its bill (the USA Patriot Act Sunset Extension Act of 2009), which had been coordinated with various members of the Obama administration (including the DOJ and several intelligence agencies). If adopted, the bill would apply various legal changes to all three existing provisions.314 The changes, albeit minor, were designed, inter alia, to strengthen safeguards (by, for example, introducing more DOJ audits), judicial review (by, for example, facilitating legal challenges of FISA-authorized nondisclosure orders), and congressional oversight. The bill would impose a new four-year sunset clause—interestingly enough, not just on the three expiring provisions but also on National Security Letters, which were made permanent in 2005. In the House, the most promising bill was reported by the Judiciary Committee in early November.315 It went slightly farther in terms of safeguards and new restrictions and included similar amendments regarding the four aforementioned provisions. One of the most significant changes involved the repeal of the lone wolf clause, which had not been used by government authorities.
At the core of the debate in both houses, however, were the so-called National Security Letters. The letters referred to (mostly FBI) requests for transactional business records. These records, as redefined by the Intelligence Authorization Act of 2004, referred to “any record held by a financial institution pertaining to the relationship to a customer’s relationship with the financial institution.”316 The more expansive definition, therefore, included transactional records obtained from travel agencies, real estate agents, postal services, jewelers, insurance companies, casinos, or car dealerships.317 Also known as administrative subpoenas, the letters were already controversial because they did not require a court order.
Adding fuel to the fire, a Justice Department audit of National Security Letters, as instituted by the 2005 Patriot Reauthorization Act, called attention to the “FBI’s widespread and serious misuse of its national security letter authorities.”318 Several of the mishandlings had not been corrected by the time the Justice Department issued its second audit report in 2008.319
Another contentious issue involved their secrecy, combined with limited legal review options. FBI requests to service providers were equipped with a “gag order,” prohibiting recipients to disclose issuance of the letter.320 And while it was possible to challenge the nondisclosure provisions in court, the courts had been siding with the government and upheld nondisclosure rules as long as the government certified a threat to national security. After the 2005 Reauthorization Act also made it possible to challenge National Security Letters themselves, a 2008 landmark decision of the U.S. Court of Appeals for the Second Circuit ruled the nondisclosure provisions unconstitutional.321 The House and Senate bills, as reported, would streamline and expedite the legal review process of nondisclosure provisions and give the courts more latitude to override any governmental compliance orders.
However, at the end of the legislative battle, none of the amendments appeared in the bill that was passed by both houses in late February. This was despite the fact that both Attorney General Eric Holder and DNI James Clapper had repeatedly endorsed the Senate bill in written communications with Congress. Instead, as part of a compromise struck on February 27, 2010, Congress extended the three provisions for another year, albeit unchanged, and President Obama signed the legislation into law.322 Amid rising concerns about homegrown terrorism, a Democrat-led Congress and White House opted not to impose additional legal restraints on either permanent or sunset provisions of the Patriot Act.
The Department of Justice, in the meantime, decided to voluntarily implement those more stringent oversight provisions contained in the Judiciary Committee’s amendment bill (dubbed USA Patriot Act Sunset Extension Act of 2011), which had also been prepared in close coordination with the DOJ.323 While these voluntary changes did not ensure statutory oversight, various Democrat lawmakers viewed this announcement an improvement.324
By the time the Patriot Act was again up for reauthorization in February 2011, the Senate reintroduced an almost identical version of the bill (minus the voluntary DOJ policy changes) that had been written in tandem with Obama administration officials one year earlier. Senior DOJ and intelligence officials once again endorsed the bill. While the bill contained more safeguards in form of, for example, additional audits, legal review options, congressional oversight, and publicly available information on FISA-authorized surveillance, the biggest difference remained that it reintroduced a sunset clause for the use of National Security Letters.
However, the political environment appeared not nearly as opportune since the Democrats had lost the majority in the House of Representatives. In fact, House Republicans soon attempted to fast-track a vote on extending the three provisions until December 2011 but, due to bipartisan opposition, failed to obtain the necessary two-thirds majority. A significant number of House Republicans did not even view the remaining Patriot Act sunset provisions as controversial and instead wanted to make them permanent. Others, including the White House, were looking to extend the bill until 2013, the sunset date that was also contained in the Senate bill. Without a consensus in sight, congressional leaders opted to give members of Congress more time to review the legislation. On February 17, both houses extended the Patriot Act once more, for another three months, allowing for additional hearings, expert briefings, and debate.
While a deal was eventually struck on May 14, 2011, once again the compromise did not entail any changes to the provisions themselves.325 As part of the deal, the three provisions would be extended for another four years but not made permanent. Nearly a decade after 9/11, with homegrown terrorism on the rise and only months after intelligence services tracked down Osama bin Laden, many lawmakers were still reluctant to amend any surveillance provisions. In a letter to congressional leaders, DNI James Clapper had urged lawmakers to reauthorize the provisions, warning that all intelligence collection powers were needed to analyze information collected at bin Laden’s compound and prevent any related plots and planned attacks.326
Among the notable exceptions was Senator Rand Paul (R-Ky.), who sought to stall the bill until he was allowed two amendment votes, which were subsequently defeated. Hours before the act was set to expire on May 27, 2011, Congress voted to reauthorize the three provisions until June 1, 2015.
Reauthorizing the FISA Amendments Act in 2012
By the time the 2008 FISA Amendments Act was scheduled for reauthorization in the fall of 2012, the Obama administration still faced a Republican House and Democrat Senate. House lawmakers soon agreed, despite some Democrat opposition, to extend the FISA Amendments Act for another five years, until 2017.327 The Senate held out until after the presidential elections in December, even though the Senate Intelligence Committee had reported the bill in May,328 and eventually narrowly defeated attempts by Democrats to impose new safeguards and restrictions. For example, an amendment put forth by Ron Wyden (D-Ore.) would have forced the DNI to publicize data on the scope and use of surveillance of, for example, U.S. citizens and residents. Senator Jeff Markley’s (D-Ore.) amendment would have required the Attorney General to share classified FISA Court decisions with the public. Another amendment by Senator