Professional Documents
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The USA Patriot Act was became law on October 26, 2001 – some six
weeks after the 9/11 terrorists attacks on the twin towers of the World Trade
Center. The Act increased the government’s surveillance powers in both
criminal and intelligence investigations, permitting an easier process for the
law enforcement and intelligence communities to share information while
conducting these two types of investigations.
The U.S. Justice Department maintains that “many of the tools the [Patriot]
Act provides to law enforcement to fight terrorism have been used for
decades to fight organized crime and drug dealers.” The ACLU has been
highly critical of this position, pointing out that it “is based on a false
equation of foreign intelligence investigations with terrorism investigations,
and criminal investigations with non-terrorism investigations (i.e.,
‘organized crime and drug dealers’).”
Three years after 9/11, the Federal Bureau of Investigation created its
“Strategic Plan 2004-2009” – a five-year road map of the strategic goals and
objectives of the agency and its commitment to fulfill the imperatives of the
President, the Attorney General, and the Director of Central Intelligence
(DCI). Federal Director Robert Meuller established ten priorities for the
agency:
Five years before 9/11, the United States Congress enacted the Health
Insurance Portability and Accountability Act of 1996 (HIPPA). See: 18
U.S.C. § 3486 (2000). Under this legislation, the Attorney General was
vested with “administrative subpoena power” to conduct criminal
investigations into health care fraud. Congress created this power in
response to the “public outcry against this prevalent crime and its effect on
the rising cost of health care.” See: Berkower, Risa, “Sliding Down a
Slippery Slope? The Future Use of Administrative Subpoenas in Criminal
Investigations,” 75 Fordham L. Rev. 2251, 2252 (April 2005)[hereinafter
“Fordham”].
Berkower wrote that “in a May, 2002 report to Congress. the Department of
Justice's Office of Legal Policy found that Congress had granted health care
fraud investigators a highly effective investigatory tool. Administrative
subpoenas proved extremely useful to both investigators and prosecutors
because, unlike traditional investigatory tools, the administrative subpoenas
enabled law enforcement agents acting on mere suspicion to access private
information and placed few prohibitions on the use of that information.” Id.,
Fordam at 2252. See also: Office of Legal Policy, U.S. Department of
Justice, Report to Congress on the Use of Administrative Subpoena
Authorities by Executive Branch Agencies and Entities 35 (2002)[report
required by the Presidential Threat Protection Act of 2000][hereinafter “DOJ
Report”].
Since 9/11, the FBI, and other federal officials, have lobbied Congress that
the agency should have this power. See: Cuming, Alfred & Masse, Todd,
Congressional Research Service, FBI Intelligence Reform Since September
11, 2001: Issues and Options for Congress 1, 4 (Apr. 6, 2004). President
Bush has strongly supported these lobbying efforts, saying: “’[i]f we can use
these [administrative] subpoenas to catch crooked doctors … the Congress
should allow law enforcement officials to use them in catching terrorists’.”
See: Sanger, David E., “President Urging Wider U.S. Powers in Terrorism
Law,” N.Y. Times, Sept. 11, 2003, at A1 (quoting President Bush's Sept. 10,
2002 address at the FBI training academy in Quantico, Virginia).
Immediately after 9/11, Congress was willing to expand the FBI’s traditional
investigatory powers in its intelligence-gathering. Title V, Section 505, of
the Patriot Act amended 18 U.S.C. § 2709 to allow the FBI to issue
“National Security Letters” (NSL) to wire or electronic communication
service providers. An NSL “is an administrative subpoena that allows the
FBI to gain access to … ‘subscriber information … or electronic
communication transactional records’ held by internet service providers,
when this information is ‘relevant to an authorized investigation to protect
against international terrorism or clandestine intelligence activities …’” See:
Doe v. Gonzales, 449 F.3d 415, 417-18 (2nd Cir. 200). See also: 18 U.S.C. §
2709(a) & (b)(2).
The Patriot Act, however, did not extend to the FBI the broad powers to
conduct domestic terrorism investigations that it enjoys conducting
international investigations. The Bush administration, therefore, has pushed
hard for an increase in the FBI’s investigatory powers in domestic terrorism
cases. Id., DOJ Report.
FBI Director Mueller has publicly conceded that his agency abused the
enhanced surveillance powers granted to the FBI by Congress in the Patriot
Act. The agency has sought, and secured, a significant number of NSLs that
were nothing more than “fishing expeditions” into the private lives of the
clients of internet service providers. Allowing the FBI, and other intelligence
gathering agencies, to circumvent the constitutional restraints associated
with traditional investigatory tools, such as search warrants/probable cause
and grand jury subpoenas, to obtain private information puts the very
concept of individual privacy at significant risk.
Some federal district court judges agree. On September 6, 2007 a New York
federal judge struck down the NSL provisions of the Patriot Act that allows
the FBI e-mail and telephone data from internet service providers without a
search warrant. More recently, September 26, 2007, an Oregon federal judge
struck down two provisions of the Patriot Act because they permit “the
executive branch of government to conduct surveillance and searches of
American citizens without satisfying the probable cause requirements of the
Fourth Amendment.” U.S. District Judge Ann Aiken observed that “for over
200 years, this Nation has adhered to the rule of law – with unparalleled
success. A shift to a Nation based on extra-constitutional authority is
prohibited, as well as ill-advised.”
The Oregon ruling came in the case of attorney Brandon Mayfield. In 2004
following a terrorist attack in Spain, the FBI bungled a fingerprint analysis
and arrested Mayfield as a conspirator in that attack. Utilizing its expanded
Patriot Act powers, the FBI secretly entered Mayfield’s house and law
offices to plant surveillance bugs, search his computer files, examine his
personal photos, and monitor his telephone conversations in his law office.
In 2006 the FBI was forced to settle a civil rights lawsuit filed by Mayfield,
agreeing to pay the attorney $2 million in damages and apologize for the
suffering the agency caused him. The FBI settled the Mayfield lawsuit
because it did not want its pattern of unlawful surveillance activities, which
Director Mueller has conceded to, revealed in a public trial.
See: Douglas Oil, Co. v. Petrol Oil Stops Northwest, 441 U.S. 211, 219 n. 10
(1979). See also: Fordham, supra, at 2251-64.
While Congress continues to debate the issue of whether the FBI should be
granted administrative subpoena power in terrorism investigations,
Berkower has identified limitations that should be placed on the agency’s
use of the information obtained through these subpoenas:
This prosecutorial “gate-keeping power” did not prevent the FBI from
seriously abusing its Patriot Act powers to secure NSLs. There is no reason
to believe that this law enforcement agency, or any other intelligence-
gathering agency, would conduct domestic terrorism investigations
responsibly with administrative subpoena power. The FBI is currently using
traditional criminal investigatory tools to gather information and evidence
(money laundering, for example) designed exclusively to produce
“terrorism” indictments.