Senate Rejects Extension of Patriot Act

took your challenge. Here is the testimony of a Congressman and former prosecutor about the actual implementation of patriot act....

http://commdocs.house.gov/committees/judiciary/hju20707.000/hju20707_0.htm

Mr. MCCAUL. Well, thank you, Mr. Chairman and Ranking Member Scott, for giving me the opportunity to appear before you today and share with you my experiences in this on this very important issue. This is really why I ran for Congress, to ensure that our laws give law enforcement the tools they need to protect our Nation. My experience in the Justice Department prior to running for Congress, I believe, is relevant, and hopefully will provide some insight to the Committee.

When we talk about information sharing, when we talk about sharing between the criminal division in the Justice Department and the Intelligence Community, and from intelligence to the criminal side, I'd be remiss if I didn't talk about the law.

I served as a career prosecutor in the public integrity section at main Justice when the so-called ''wall'' between the criminal division and the FBI's foreign counterintelligence section was in place. After 9/11, I served as Chief of Counterterrorism in the U.S. Attorney's Office in Texas. My jurisdiction included the President's ranch, the State capitol, and the Mexican border.

I practiced law under the PATRIOT Act—including the ones which brought down the wall and the information sharing provisions we're discussing today. Also, prior to that, I served as deputy attorney general under then attorney general and now United States Senator John Cornyn.

I'd like to take us back to 1995, and I know that you're familiar with this memo. But at that time, the United States Attorney General adopted policies and procedures for contacts between the FBI and the criminal division concerning foreign counterintelligence investigations. This policy essentially prohibited the criminal division from controlling or directing FCI investigations. Eventually, these procedures would be narrowly interpreted to act as a wall between the FBI intelligence officials from communicating with the criminal division.

As noted by the 9/11 Commission report, this wall may have created a climate that helped contribute to 9/11. Indeed, an FBI agent testified that efforts to conduct a criminal investigation of two of the hijackers were blocked due to concerns over the wall.

Frustrated, he wrote to FBI headquarters saying, ''Some day, someone will die and, wall or not, the public will not understand why we were not more effective at throwing every resource we had at certain problems. Let's hope the National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, Osama bin Laden, is getting the most protection.'' Now, these words are prophetic today.

Another good illustration of the wall creating a dangerous confusion is the case of Wen Ho Lee and the Los Alamos investigation. The first time the Chief of Counter Espionage in the Justice Department even heard of Wen Ho Lee was when he read about him in the ''New York Times.''

And indeed, in my own experience, I was assigned to investigate allegations that China attempted to corrupt and influence our elections. With the cooperation of witnesses, we were able to uncover some evidence that the director of Chinese intelligence may have funneled money to influence the presidential election. The frustration, however, came from the lack of coordination and communication with the foreign counterintelligence side of the house, particularly when our criminal investigation moved into the intelligence arena.

Ultimately, these examples portray an inefficient system in which the left hand literally did not know what the right hand was doing.

Today, thanks to the PATRIOT Act, this wall has come down. The PATRIOT Act helps us connect the dots, by removing the legal barriers that prevented law enforcement and the Intelligence Community from sharing information and coordinating to protect national security.

My own experience in the Justice Department after the wall came down was profound and dramatically improved. As chief of counterterrorism, I spearheaded the efforts of the Joint Terrorism Task Force. No longer did the barriers of communication exist. Indeed, the FBI's foreign counterintelligence agents and the Intelligence Community were full partners at the table. And for the first time, FBI intelligence files were reviewed by criminal division prosecutors and agents.

In addition, criminal files and grand jury materials, previously non-disclosable under rule 6(e), were now available in intelligence and terrorist cases. Our greatest task was to identify and locate the terrorist cells, and one of the tools we used to achieve this goal was through the use of national security wiretaps, or FISAs.

In addition to FISAs, the PATRIOT Act, in my view, provides many other tools necessary for law enforcement in the war on terrorism. First, it updates the law to the modern technology age. Second, it promotes efficiency by providing for nation-wide search warrants in terrorism cases. And finally, the PATRIOT Act takes laws which we've long applied to drug dealers and organized crime, and applies them to terrorists.

took your challenge. Here is the testimony of a Congressman and former prosecutor about the actual implementation of patriot act...

Good stuff, and it's expected that investigators appreciate the language of the Patriot Act. But that wasn't my point.

As to whether the Patriot Act is a necessary statute to extend FISA, below is a link that purports to describe the different levels of civil rights protection represented by FISA and the Patriot Act. Note the comments and footnotes on page 4, which I summarize as asserting "the law (FISA) regarding data sharing as construed in 301 F.3d 717 is the same as the Patriot Act."

http://www.fas.org/irp/agency/doj/fisa/navy0903.pdf

Are you asserting that the Patriot Act was a necessary prerequisite for dismantling the "Gorelick Wall"? That is one assertion made by others, and I dispute that assertion. In fact, the Gorelick memo itself recites that the procedures it erects "go beyond what is legally required."

Since -- from your own statement -- an Assistant Attorney General can -at will- "go beyond what is legally required", then yes, the wall must be torn down and the bricks and mortar permanently removed via an explicit law like the Patriot Act.

As to whether the Patriot Act is a necessary statute to extend FISA, below is a link that purports to describe the different levels of civil rights protection represented by FISA and the Patriot Act. Note the comments and footnotes on page 4, which I summarize as asserting "the law (FISA) regarding data sharing as construed in 301 F.3d 717 is the same as the Patriot Act."

http://www.fas.org/irp/agency/doj/fisa/navy0903.pdf

Your summarization is in error. The Navy "interpretation" of the actual statutes FISA that you cite says in paragraph 4:

"""""The USA Patriot Act, and subsequent related legislation, made several amendments to FISA...and a modification of the
requirement that the surveillance be conducted for foreign
intelligence purposes.""""

The Patriot Act changed FISA, they were not identical.

If the Patriot Act modifies FISA expires on Dec 31, then modifications to FISA expire and we revert to the same successful arrangement that brought about planes crashing into buildings and the deaths of 3000 Americans.

be interpreted as “the primary purpose,” and the government was required to show that gathering foreign intelligence, and not criminal prosecution, was the primary purpose of the
surveillance. In order to meet this standard, the government
endeavored to minimize any connection between the FISA
surveillance request and a potential criminal prosecution. Over time, this led to the development of significant barriers and lack of communication between law enforcement and foreign intelligence.12 With the change, it is now permissible for the primary purpose of the surveillance to be criminal prosecution, as long as gathering foreign intelligence remains a significant purpose. This is valuable because legitimate targets of foreign
intelligence surveillance may also be involved in criminal
activity, such as espionage or terrorism. These are both
important objectives, and the government should not have to
abandon one in order to pursue the other. The new language
allows this by not requiring the

Your summarization is in error. The Navy "interpretation" of the actual statutes FISA that you cite says in paragraph 4:

"""""The USA Patriot Act, and subsequent related legislation, made several amendments to FISA...and a modification of the requirement that the surveillance be conducted for foreign intelligence purposes.""""

My summarization is correct. The Navy article refers to the court case (301 F.3d 717), and it is that case that says data sharing is permitted.

If the Patriot Act modifies FISA expires on Dec 31, then modifications to FISA expire and we revert to the same successful arrangement that brought about planes crashing into buildings and the deaths of 3000 Americans.

Obviously, I disagree. I think the degree of alarm at the possible lapse of some measures of the Patriot Act amounts to "Chicken Little." Even without the Patriot Act, law enforcement and other intelligence gathering operations (e.g., the recently-disclosed NSA activity authorized by President Bush) can continue to enable a vigorous defense.

I thought we were going to have an honest discussion. Read the quote:

"The USA Patriot Act, and subsequent related legislation, made several amendments to FISA..."

You said FISA and Patriot act were identical while the JAG's letter says the Patriot act modified FISA. Certainly you aren't going to argue that it depends on what 'the word identical' means'?

My years in the army gave me a pretty good sense of how laws and regulations work together. With the expiration of the modification to FISA, we return to the status quo.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Navy article refers to the court case (301 F.3d 717), and it is that case that says data sharing is permitted.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

It does not help your argument that this case is dated 12 November 2002 when the Patiot Act was passed as law on October 24, 2001 (in response to September 11, 2001). The court was following law, not making it.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Either I'm a Chicken Little or a ChickenHawk. I like being called names but I prefer facts. Here's another fact: on September 10th, we all thought 'law enforcement and other intelligence gathering operations' were engaged in 'a vigorous defense'. We were wrong and people died. Maybe our grandchildren can again be complacent.

I thought we were going to have an honest discussion.

Are you saying I am being dishonest? If so, we are done.

You said FISA and Patriot act were identical while the JAG's letter says the Patriot act modified FISA.

I said,

Note the comments and footnotes on page 4, which I summarize as asserting "the law (FISA) regarding data sharing as construed in 301 F.3d 717 is the same as the Patriot Act."

Certainly you aren't going to argue that it depends on what 'the word identical' means'?

Sophistry on your part. You know what I meant. And YOU are the only one who has used the word "identical" in our exchange.

It does not help your argument that this case is dated 12 November 2002 when the Patiot Act was passed as law on October 24, 2001 (in response to September 11, 2001). The court was following law, not making it.

Have you read the case or any summary of it?

As the Review Court held in 2002, FISA "as passed by Congress in 1978 clearly did not preclude or limit the government's use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution."
http://www.nationalreview.com/comment/mccarthy200404130845.asp

That case -is- the law too.

In a post above you said --- "the provisions of law that permit sharing have been duplicated in a section of law that does not sunset on 12/31/2005."---- "duplicated"

du·pli·cate ( P ) Pronunciation Key (dpl-kt, dy-)
adj.
Identically copied from an original.
Existing or growing in two corresponding parts; double.
Denoting a manner of play in cards in which partnerships or teams play the same deals and compare scores at the end: duplicate bridge.

In your following post you said "the same as"

from dictionary.com

i·den·ti·cal ( P ) (-dnt-kl)
adj.
Being the same: another orator who used the senator's identical words.
Exactly equal and alike.
Having such a close similarity or resemblance as to be essentially equal or interchangeable.

You call me a sophist? You said 'duplicated' and then 'the same as". But now you strive to avoid acknowledging that whether using the word "duplicated" or the phrase "same as" your Navy Jag letter points out that the Patriot Act modified the FISA act. "Modified". Perhaps you can explain how one law that "is the same as" a second law can modify the former. Might it not be easier for you just agree that the law enforcement vs. intelligence provision of the Patriot Act is not 'the same as" the FISA act?

It is good to get to the source document. My reading of this appellate decision is that the lower court's decision was a September 10th decision which must have referenced "the wall", even after passage of the Patriot Act.

(fifth paragraph) The “wall” emerges from the court’s implicit interpretation of FISA. The court apparently believes it can approve applications for electronic surveillance only if the government’s objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. But the court neither refers to any FISA language supporting that view, nor does it reference the Patriot Act amendments

My Comments --- Fortunately, the review you and I are discussing made its decision based on perspective gained from the deaths which occured on September 11th and specifically relies upon the ammendment of FISA by the Patriot Act.

From the decision at the beginning of the decision::::
we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution

I think my position that the Patriot Act is critical to keep "the wall" from being rebuilt is further supported by sentences which closely follow your quote.

Although the Patriot Act amendments to FISA expressly sanctioned consultation and coordination between intelligence and law enforcement officials, in response to the first applications filed by OIPR under those amendments, in November 2001, the FISA court for the first time adopted the 1995 Procedures, as augmented by the January 2000 and August 2001 Procedures, as “minimization procedures” to apply in all cases before the court.17

Finally, I read National Review daily and never miss an Andrew McCarthy column. Did you read this paragraph in the article you linked to?

In finding the way forward, for example, there is little that the commission could do that would be of greater service to the nation than to urge the essential preservation of Patriot Act information-sharing reforms. The Patriot Act dismantled the FISA wall. It exhorted intelligence and criminal agents to pool information, even going a step better by removing the complementary barriers that prevented criminal agents from sharing grand-jury information with their intelligence counterparts.

Chicken Little: (b) whenever (d) September 11, 2001

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