Senate Judiciary Approves Patriot Extensions with Amendments

The letters often are used to seek phone and Internet records from communications providers. They can’t be disclosed by the recipient. And they don’t require judicial approval, unlike business records requested under Section 215 of the Act, one of the expiring provisions. Several lawmakers said they were persuaded to vote for changes in the bill by a recent classified briefing from the Justice Department and FBI. Chairman Patrick Leahy, D-Vt., said some privacy protections were added at the Obama administration’s request, but the committee hasn’t “undermined the operational effectiveness” of counterterrorism tools.

Sessions stressed that under his amendments terrorism investigations would remain under tighter restrictions in some ways than criminal investigations. The first change would require minimization procedures only for pen registers on “known” U.S. targets, since law enforcement officials often don’t know at the start of investigations whether phone numbers collected are tied to ones in the U.S. The second would require a judge to issue a nondisclosure order for a national security letter if the government meets its burden of showing that’s necessary. The original bill, introduced by Leahy and Sen. Dianne Feinstein, D-Calif., said a judge “may” issue an order. The third would remove a proposed requirement for the FBI to tell the recipient of an letter when the nondisclosure period has expired. That would be a “tremendous administrative burden,” Sessions said. The bureau should be allowed to wait for the recipient to ask, he said.

Sessions said another amendment would lower some protections for library records under Section 215 so they weren’t more privileged than, say, bank records. But in a compromise, circulation records would retain greater protections, he said. The other amendment, requested by the administration, would require courts in “exceptional circumstances” to apply some protections for pen-register data. Leahy said the amendments were a “product of a cooperative effort” and “everybody worked in good faith” to compromise. Feinstein said the bill by her and Leahy had been given a green light by officials at the classified briefing who said the original could have hurt ongoing intelligence operations. She criticized a New York Times editorial for describing some of the bill’s provisions as “excesses.”

“We have moved a tremendous distance” since a 2005 update that required an investigation be tied to a “foreign power,” said Sen. Arlen Specter, D-Pa. The bill “just guts the structure” of the law, he said. Sen. Russ Feingold, D-Wis., agreed with the Times editorial that the roving-wiretap provision about to expire goes too far. Feingold, who also got the classified briefing, disagreed that a higher standard he proposed with Durbin would have impeded any investigation. He called for more declassification of information that senators were using to push the bill.

“We're taken steps backwards” on Section 215 and national security letters, said Sen. Orrin Hatch, R-Utah. He said throughout the markup he'd vote for the bill and seek changes on the floor. But just before the roll call he abruptly reversed himself. The Section 215 changes will make it more difficult to get records in the “initial phases” of an investigation when they're most relevant,” he said, echoing Sessions concerning the lower standards for criminal investigations. “Why should we create a double standard?” The substitute similarly imposes a higher standard for letters for “transactional records” in the early stages of investigation, and requires a longer explanation to get a pen register ordered, Hatch said.

Sen. Ben Cardin, D-Md., agreed that law enforcement will use its investigative power “at least initially in the right way.” But Congress must show independent judgment to prevent abuses like those cataloged by the FBI inspector general in the abuse of requests for the letters, he said. Sen. Sheldon Whitehouse, D-R.I., said it was a “bit unfair” to compare pen-register supervision for criminal and national-security investigations. Sessions’ amendments were approved as a package.

Al Qaeda Members ‘Don’t Carry Cards in Their Wallets’

Durbin noted the FBI inspector general’s (IG) findings of “widespread and serious misuse” of NSLs that led to “fishing expeditions” for data on irrelevant people (CD March 29/07 p5). His amendment would give the FBI much discretion, only requiring an investigation be tied to a foreign power, he said. “Now informed of widespread abuse, will we do nothing?” Sen. Jon Kyl, R-Ariz., said that the IG report primarily catalogued the abuse of so-called exigent letter requests and had nothing to do with Durbin’s amendment. “For two years now we've been hearing about what the FBI has been doing about” those “primarily procedural problems,” Kyl said. It will be more difficult to start investigations with so many hurdles, he said: Al Qaeda members “don’t carry cards in their wallets” identifying themselves. Feinstein also opposed the amendment, saying it would likely make NSLs “unusable for their main purpose” of gathering limited information at the start of investigations. Leahy agreed.

Feingold assailed the “overly broad and dangerously ambiguous standard” Feinstein and others embraced, backing Durbin. The committee’s attitude seems to be “'we just kick it over to the FBI'” and officials will fix any problems, he said. Under Durbin’s amendment, investigations could be pursued against someone “relevant to the activities of an agent,” a concrete standard, Feingold said. Sessions insisted the NSL standard in the bill was “minimally intrusive.” The amendment failed.

Several smaller amendments followed and were approved. One by Kyl would require a court to give “substantial weight” to government requests for NSL nondisclosure, as opposed to the “appropriate weight” in the substitute measure. Sen. John Cornyn, R-Texas, and Feinstein agreed that “appropriate” is a subjective legal term that judges can’t reasonably interpret. “Substantial weight” is a term with precedent, appearing in the Foreign Intelligence Surveillance Act and State Secrets Act, Feinstein said.

Feingold got through an amendment requiring the attorney general to use minimization procedures for excising information that is not considered relevant but could be sensitive if disclosed for data obtained through NSLs, since they weren’t applied on the “front end.” Kyl is “very troubled” by the proposal, he said. “This idea is far enough out that I don’t think we even asked the FBI about this,” and its logical conclusion would be that grand juries would have to use minimization procedures too. They disagreed over whether the FBI has already agreed they should be using minimization procedures at that stage. Another Kyl amendment struck the phrase “specific and articulable” from the Leahy bill, again concerning the threshold for starting an investigation. Durbin said the FBI should just be given carte blanche if it can’t meet that standard. But Kyl said he only wanted to keep the “status quo” -- the original bill language -- and Leahy said he supported Kyl.

As the committee started to wrap up and adjourn for floor votes, Feingold tried to offer amendments related to FISA and intelligence collection of “bulk” communications. Leahy protested that they weren’t relevant to the markup, and Feingold agreed to withdraw his amendments.