Congress approved a bill on Friday that expands the reach of the Patriot Act, reduces oversight of the FBI and intelligence agencies and, according to critics, shifts the balance of power away from the legislature and the courts.
A provision of an intelligence spending bill will expand the power of the FBI to subpoena business documents and transactions from a broader range of businesses — everything from libraries to travel agencies to eBay — without first seeking approval from a judge.
Under the Patriot Act, the FBI can acquire bank records and Internet or phone logs simply by issuing itself a so-called national security letter saying the records are relevant to an investigation into terrorism. The FBI doesn’t need to show probable cause or consult a judge. What’s more, the target institution is issued a gag order and kept from revealing the subpoena’s existence to anyone, including the subject of the investigation.
The new provision in the spending bill redefines the meaning of “financial institution” and “financial transaction.” The wider definition explicitly includes insurance companies, real estate agents, the U.S. Postal Service, travel agencies, casinos, pawn shops, ISPs, car dealers and any other business whose “cash transactions have a high degree of usefulness in criminal, tax or regulatory matters.”
Justice Department officials tried earlier this year to write a bill to expand the Patriot Act. A draft — dubbed Patriot II — was leaked and caused such an uproar that Justice officials backed down. The new provision inserts one of the most controversial aspects of Patriot II into the spending bill.
Intelligence spending bills are considered sensitive, so they are usually drafted in secret and approved without debate or public comment.
Chris Schroeder, a Duke law professor and former assistant attorney general in the office of legal counsel at the Justice Department, said the re-insertion shows that “people who want to expand the powers of the FBI didn’t want to stop after Patriot II was leaked.”
“They are going to insert these provisions on a stealth basis,” Schroeder said. “It’s insidious.”
James X. Dempsey, executive director of the Center for Democracy and Technology, echoed Shroeder’s analysis.
“On its face, it’s a cryptic and seemingly innocuous amendment,” Dempsey said. “It wasn’t until after it passed both houses that we saw it. The FBI and CIA like to try to graft things like this into intelligence bills.”
House Intelligence Committee chairman Porter Goss (R-Florida) defended the new definition, saying it was necessary to keep pace with terrorists and the changing economy.
“This provision brings the definition of ‘financial institution’ up to date with the reality of the financial industry,” Goss said on the House floor. “This provision will allow those tracking terrorists and spies to ‘follow the money’ more effectively and thereby protect the people of the United States more effectively.”
The expansion surprised many in Congress, including some members of the intelligence committees who recently began reconsidering the scope of the Patriot Act.
Timothy Edgar, legislative counsel for the American Civil Liberties Union (http://www.aclu.org/), decried the expansion of an executive power that is not subject to judicial oversight.
“The more that checks and balances against government abuse are eroded, the greater that abuse,” Edgar said. “We’re going to regret these initiatives down the road.”
National security letters, or NSLs, are among the most-used antiterrorism powers, and are among the least-known or scrutinized. The Bush administration has pushed to expand their use. In the spring, it tried unsuccessfully to allow the CIA and the military the right to issue such subpoenas.
The FBI says it can’t say how many times it has issued itself NSLs because of national security. A few weeks ago, civil liberties groups forced the Justice Department to release some of those records, but Justice handed over a six-page, blacked-out list.
Other portions of the funding bill eliminate annual reports to Congress on several controversial matters, such as foreign companies’ involvement in the spread of weapons of mass destruction, the effectiveness of the intelligence community and antidrug efforts.
The bill also nixes reports on how many times national security letters are used to access individuals’ credit reports.
After a joint committee reconciled the two versions of the bill, both houses had to vote to approve the compromise version, which is usually considered a formality. While Friday’s Senate vote was a voice vote, on Thursday, 15 Republicans in the House broke ranks and voted against the entire intelligence-funding bill in protest of the national security provision. The bill passed by a vote of 264 to 163.
Though debate was limited, a handful of representatives, including Butch Otter (R-Idaho), spoke out against the bill.
“In our fight for our nation to make the world a safe place, we must not turn our backs on our own freedoms,” Otter said. “Expanding the use of administrative subpoenas and threatening our system of checks and balances is a step in the wrong direction.”
The ACLU’s Edgar said he was surprised by the extent of the Republican defections. It shows how views in both parties have changed about granting unchecked antiterrorism powers.
Edgar also argued the extension may anger strong interest groups — such as casinos, Realtors and travel agents — who previously weren’t part of the civil liberties debate.
“They had no idea this was coming,” Edgar said. “This is going to help to continue to expand the list of people and organizations that are asking questions about civil liberties and Patriot Act powers.”
Members of Congress who were upset by the provisions and the process that led to their passage may hold hearings on the matter early next year.
Neither the chairman of the Senate Select Committee on Intelligence, Sen. Pat Roberts (R-Kansas) nor the ranking minority member, Sen. Jay Rockefeller (D-West Virginia), responded to requests for comment.
The FBI directed press calls to the Department of Justice, which didn’t respond by press time.
The Justice Department has vigorously defended its use of the Patriot Act for both terrorist and nonterrorist investigations and set up a website to respond to its critics.