Last night, despite a strong majority vote in favor of the bill, the House of Representatives fell seven votes short of the two-thirds they needed to suspend the rules and pass three key counterterrorism amendments to the Foreign Intelligence Surveillance Act (FISA). Many of the headlines you will read today will say things like “Patriot Act Extension Fails in House,” but the reality is that much of the PATRIOT Act was already permanently enacted. Of the three amendments to FISA at issue in last night’s vote, two were part of the original PATRIOT Act, one was part of the Intelligence Reform and Terrorism Prevention Act of 2004, and all are set to expire at the end of this month.
Eight of the 26 Republican no votes came from freshmen who, Politico reports, “felt completely uninformed by their leadership.” Representative Todd Rokita (R–IN), who voted for the bill, even told Politico that he “didn’t know anything about [the vote] until today.” The three amendments voted on last night have been extensively modified over the years and now include significant new safeguards, including substantial court oversight. They include:
Roving Surveillance Authority: Roving wiretaps have been used routinely by domestic law enforcement in standard criminal cases since the mid-1980s. However, national security agents did not have this garden-variety investigative tool until the passage of the PATRIOT Act in 2001. Section 206 of the PATRIOT Act allows law enforcement, after approval from the FISA court, to track a suspect as he moves from cell phone to cell phone. The government must first prove that there is “probable cause” to believe that the target is a foreign power or an agent of a foreign power. It further requires continuous monitoring by the FISA court and substantial reporting requirements to that Court by the government.
Business Record Orders: Domestic law enforcement, working with local prosecutors, routinely rely on business records through the course of their investigations, oftentimes through the use of a subpoena. However, national security agents did not have the same authority to acquire similar evidence prior to the passage of Section 215 of the PATRIOT Act. This provision allows law enforcement, with approval from the FISA court, to require disclosure of documents and other records from businesses and other institutions (third parties) without a suspect’s knowledge. The third-party recipients of 215 orders can even appeal any order to the FISA court.
The Lone Wolf Provision: Section 6001 of the Intelligence Reform and Terrorism Prevention Act allows law enforcement to track non-U.S. citizens acting alone to commit acts of terrorism that are not connected to an organized terrorist group or other foreign power. While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.
At least 36 known terrorist plots have been foiled since 9/11. The United States continues to face a serious threat of terrorism. National security investigators continue to need the above authorities to track down terror leads and dismantle plots before the public is any danger. Opponents of these provisions have produced little evidence of any PATRIOT Act misuse. All of the provisions above are subject to routine oversight by both the FISA court and Congress, and no single provision of the PATRIOT Act has ever been found unconstitutional. Congress should not let the sunset provisions expire and should instead seek permanent authorization.