Issue #43
Last Update December 24, 2005
National Patriot Act (2) by Gerry Krownstein July, 31, 2005 In this second of three articles exploring the Patriot Act as it currently stands (see The Patriot Act, 6/14/05) we will concentrate on Titles II (Enhanced Surveillance Procedures), V (Removing Obstacles to Investigating Terrorism). In the next article, we will cover Title VIII (Strengthening the Criminal Laws Against Terrorism). These three titles result in the broadest expansion of Executive power and are the most controversial sections of the Act.
Title II authorizes, for the first time, disclosure of otherwise secret Grand Jury proceedings “When the matters involve foreign intelligence or counterintelligence, or foreign intelligence information, to any Federal law enforcement, intelligence, protective, immigration, national defense or national security official in order to assist the official receiving that information in the performance of his official duties.” Within a reasonable time after such disclosure, an attorney for the government is required to file a notice with the court, under seal, the fact that such information was disclosed and the entity to which the disclosure was made.
Title II also authorizes the sharing of electronic, wire or oral interception information, to the extent that such information includes foreign intelligence or counterintelligence information, but only as necessary to the conduct of official duties. This section and the one preceding are pretty specific in their definition of what constitutes intelligence or counterintelligence matters. The Patriot Act also broadens the interception and disclosure rules from wire and oral to wire, oral and electronic. Translators for intercepted information are also provided for.
Surveillance periods provided for in the Foreign Intelligence Surveillance Act are lengthened from 90 to 120 days, seizure of voice mail messages is included, subpoenas of records for electronic communications have been broadened to include temporarily assigned network addresses and means and source of payments for electronic services. Records of cable video selections are excluded, however. Previously forbidden disclosure of information by service providers, already loosened by the previous sections, is further permitted if the server provided reasonably believes that an emergency involving danger of death or serious injury requires disclosure without delay.
One of the more controversial provisions of title II allows the delay in informing the subject of a warrant or other court ordered surveillance or seizure of information if the court finds reason to believe that providing immediate notification “would have an adverse effect” and the warrant provides for the giving of such notification “within a reasonable period of its execution.”
Other sections of Title II include access to business records for foreign intelligence and international terrorism investigations, provided “that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.” The order for such access is to be secret, and the fact that the FBI carried out the order is to be secret. Congressional oversight of all such orders is mandated, with a six month statistical review specified. Search warrants in terrorism cases no longer apply to a single jurisdiction, but may be issued by a federal judge in any jurisdiction in which such activities may have occurred may include searches outside that jurisdiction. There are restrictions placed on the government on dissemination of information not applicable to the inquiry at hand; it is notable, however, that if a Federal employee or other law enforcement official violates the safeguards and restrictions on disclosure of private information specified in the Act, only civil penalties, paid by the government, and disciplinary action against the employee, are provided for, but may be stayed if the government asserts that an ongoing action will be compromised. Finally, the Trade Sanctions Reform and Export Enhancement Act of 2003 has been expanded to include the Taliban and Taliban controlled areas of Afghanistan.
Title II is subject to a sunset provision, expiring its powers in December, 2005.
Title V, Removing Obstacles to Investigating Terrorism, permits the payment of rewards, expands the scope of the DNA Analysis Backlog Elimination Act of 2000 to include as Federal crimes certain crimes of violence and attempt or consipiracy to commit them. Sharing of intelligence information with law enforcement officials is now permitted in cases of attack against the US, sabotage and terrorist activities, and foreign spying. Acquisition of bank records and other surveillance activities can be done in such cases “provided that such an investigation is not conducted solely on the basis of protected first amendment activities”. Authorization for investigations is extended to the US Secret Service as well as the FBI, with the FBI retaining the leading role. For the first time, the Act authorizes educational institutions to be required to turn over educational records “relevant to an authorized investigation or prosecution”.
In the next article we will cover Titles VIII, IX and X, and comment on some outstanding issues.
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