Next week, the Senate Judiciary Committee will take up the difficult and controversial debate over the reauthorization of three provisions of the Foreign Intelligence Surveillance Act set to expire at the end of the year. For those concerned that the Obama Administration has not done enough in the area of counter-terrorism policy, Wednesday provided welcome news—the administration supports reauthorization.
During the September 23 hearing, the Judiciary Committee will take a general look of the USA PATRIOT Act Improvement and Reauthorization Act of 2005, as well as a specific review of three provisions set to sunset:
- Roving Wiretaps—USA PATRIOT Act, Section 206, codified at 50 U.S.C. § 1805(c)(2)
Recognizing that today's terrorists and foreign intelligence officers are skilled in counter-surveillance techniques, this provision provides for roving surveillance of targets who take measures to thwart surveillance. Prior to the enactment of this provision, a new warrant needed to be issued each time a target used a different communication device. This statute allows the government to conduct surveillance on any phone or computer that a target may be use, thereby preventing unnecessary delay.
- Business Records Collection—USA PATRIOT Act Section 215, codified at 50 U.S.C. §§ 1861-61
In attempt to close a gap in intelligence collection authorities, this provision authorizes the FBI to file an application with the Foreign Intelligence Surveillance Court for an order to obtain business records in national security investigations. This authority generally tracks the type of power granted to the FBI through the use of grand jury subpoenas in ordinary criminal investigations.
- Lone Wolf—Intelligence Reform and Terrorism Prevention Act of 2004 Section 6001, codified at 50 U.S.C. § 1801(b)(1)(C)
This provision allows the FBI to investigate "lone wolf" terrorists—those who are engaged in acts of international terrorism but who may be unconnected to foreign governments. Although this provision has not yet been used, its importance is clear—many of the threats that the U.S. faces come from non-state actors who may not be covered under traditional FISA authorities.
The efficacy of these programs is unquestionable. Each of them has expanded the ability of the Department of Justice to investigate, capture, and prosecute those involved in acts of international terrorism. While Congress should certainly take this opportunity to reevaluate these provisions and ensure that they are drawn narrowly enough to respond to the concerns of civil libertarians, it should heed the advice of the Obama administration and take the important step of reauthorizing these necessary investigative tools.
See full statement of Attorney General Holder here.