Exemptions in the Patriot Act would keep its powers alive for many investigations, including all continuing terrorist probes, even if Congress allows 16 provisions to expire Dec. 31.
As Congress struggled over whether and for how long to extend the act and with what new safeguards for civil liberties, attention turned to the anti-terrorism law’s actual sunset provisions, which are sharply limited.
Even if the law expires, the act provides that all of its powers continue in effect “with respect to any particular foreign intelligence investigation that began before Dec. 31, 2005, or with respect to any particular offense or potential offense that began or occurred before Dec. 31, 2005.”
In effect, Patriot Act powers would expire Dec. 31 only for new investigations of people whose criminal activity began after Dec. 31 and who were not associated with anyone who was under investigation before Dec. 31.
Nevertheless, administration officials suggested that expiration would have serious consequences.
“These provisions of the USA Patriot Act are essential to our efforts in the war on terrorism and their loss will damage our ability to prevent terrorist attacks,” Attorney General Alberto Gonzales said Friday. “Our nation cannot afford to let these important counterterrorism tools lapse,” he said, without providing details of the dangers he foresaw.
Later, Justice Department spokesman Brian Roehrkasse added, “The primary intention of the Patriot Act is to provide law enforcement with the tools needed to prevent acts of terrorism.” If the provisions expire, Roehrkasse said, “We will return to a pre-9/11 mode of information sharing, where terrorists and spies can use technology against us and our criminal and intelligence communities’ ability to share information with each other will be disrupted.”
Although the act’s powers would continue for existing investigations and pre-Dec. 31 activities, Roehrkasse said agents might not be able to immediately associate new terrorist suspects discovered next year with ongoing investigations or earlier actions and so would not be able to use the act’s powers to thwart them quickly.
“No wiretap or roving wiretap will be turned off, no National Security Letter seeking records will be quashed if the act expires,” said James Dempsey, executive director of the Center for Democracy and Technology, which supports extending the law with amendments like those approved unanimously by the Senate this past summer.
There are ongoing investigations of all the known terrorist groups, including al-Qaida, Hamas, Hezbollah, Islamic Jihad and the Zarqawi group in Iraq, and those investigations could continue to use all Patriot Act powers, Dempsey said. Even newly discovered members of these groups would be subject to Patriot Act investigative tools.
And, if an entirely new terrorist group were discovered after Dec. 31, all Patriot Act powers could be used if investigators believed the suspects had committed or begun to commit crimes before Dec. 31. This coverage would include even people who were giving support to terrorists or who had gone to terrorist training camps months or years earlier, but were only discovered after Dec. 31.
But how would expiration affect investigations of new crimes by people newly discovered after Dec. 31?
“Agents would have to jump through some additional hoops,” Dempsey said.
Those people would have to be investigated under prior authorities which either required greater suspicion or limited the amount of data that agents could get, depending on which provision was involved.
“Agents would have a harder time getting a roving wiretap from the secret Foreign Intelligence Surveillance Act court, but they could still get roving wiretaps under criminal laws that have been on the books since 1986,” Dempsey said. “However, they would have to have more evidence of a crime.”
FBI agents could still issue National Security Letters demanding electronic records but they could only get the records of people they specifically suspected rather than whole databases that include records of suspects and non-suspects, he said.
On business records, agents would have to focus on car rental, air travel, hotel and motel reservations and other travel-related records of individual suspects, rather than getting the entire database that includes information on suspects and non-suspects alike, Dempsey added.
If FBI agents wanted to share criminal wiretap and grand jury material with the CIA, they could still do so but they would have to get prior approval from a judge, Dempsey said.
On the Net:
Justice Department: https://www.usdoj.gov
The Center for Democracy and Technology: https://www.cdt.org