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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

2 Senators Accuse Justice Dept. of Twisting Patriot Act –

In a May 26, 2011 article entitled, 2 Senators Accuse Justice Dept. of Twisting Patriot Act, the New York Times reports that a bill passed 72 to 23 in the Senate and 250 to 153 in the House to extend three authorities for the conduct of intelligence investigations that were set to expire at midnight of May 28, 2011.  The Times, however, is mistaken in reporting that lawmakers were “rushing to enact legislation to prevent a lapse in several of the federal government’s investigative powers under the Patriot Act”(emphasis added).  In fact, there are only three – not several – powers involved, and only two of those involve provisions that once were in the USA PATRIOT Act of October 26, 2001.  Because all three involve amendments of the Foreign Intelligence Surveillance Act (FISA), it would be more accurate to report that “Congress Overwhelming Extends Three Provisions of the Foreign Intelligence Surveillance Act.”

Admittedly, it is all a bit confusing, because the bill that Congress passed on Thursday and that the President subsequently signed was officially entitled “PATRIOT Sunsets Extension Act of 2011.”  Moreover, it starts by mentioning the Small Business Act.  Here is the entire text of S.990 as passed by both houses and approved by President Obama:


One Hundred Twelfth Congress

of the

United States of America


Begun and held at the City of Washington on Wednesday,

the fifth day of January, two thousand and eleven

An Act

To provide for an additional temporary extension of programs under the Small Business Act and the Small Business Investment Act of 1958, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


    This Act may be cited as the `PATRIOT Sunsets Extension Act of 2011′.


    (a) USA PATRIOT Improvement and Reauthorization Act of 2005- Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is amended by striking `May 27, 2011′ and inserting `June 1, 2015′.
    (b) Intelligence Reform and Terrorism Prevention Act of 2004- Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458; 50 U.S.C. 1801 note) is amended by striking `May 27, 2011′ and inserting `June 1, 2015′.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

What has really happened here are three things:

  1. The provision of FISA authorizing roving wiretaps (50 U.S.C. 1805(c)) has been reauthorized until 2015.  Roving wiretaps have long been authorized in criminal investigations conducted pursuant to “Title III” wiretap law.
  2. The provision of FISA authorizing surveillance of so-called “lone-wolf” terrorists has been reauthorized until 2015.  This provision was added to FISA by the Intelligence Reform and Terrorism Prevention Act of December 2004 – three years after the USA PATRIOT Act.
  3. The provision of FISA that permits the government to require third parties to produce “business records” defined as “any tangible thing” has been extended until 2015.  Prior to October 2001, the business records whose production could be demanded were defined much more narrowly.  Section 215 of the USA PATRIOT Act expanded the definition to match that of Federal Rule of Criminal Procedure 17 – that is, to any tangible thing. (Rule 17 states: “A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.” Note that such can be obtained under the criminal rule without a court order.)  Section 215 was the so-called “Library Provision,” although it never used the word “library.”  It was extraordinarily controversial at least until Congress amended it  while extending it in 2006.  Section 215 also changed the requirements for an application for the issuance of a court order compelling production of such records from “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power” to a requirement that the applicant “specify that the records concerned [were] sought for a [foreign intelligence, international terrorism, or espionage investigation.]”  In 2006, that requirement was heightened for certain categories of information thought to be more sensitive (“library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person”).

So, the actual roving surveillance provision for intelligence investigations continues to read:

(3) Special directions for certain orders

An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—

(A) the nature and location of each new facility or place at which the electronic surveillance is directed;

(B) the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;

(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and

(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.

50 U.S.C. 1805(c)(3) (emphasis added).

The Lone Wolf provision continues to be:

(b) “Agent of a foreign power” means—

(1) any person other than a United States person, who—

(C) engages in international terrorism or activities in preparation therefore;

50 U.S.C. 1801(b)(1)(C) (emphasis added).

The law governing compelled disclosure of third party records to an intelligence investigation is too long to reproduce here, but it can be found at this link.  Also, an in-depth analysis of the provisions that would have sunsetted is provided by the Congressional Research Service.

What The Times article highlights are comments by two Senators that suggest that some unspecified investigative authorities are being abused pursuant to a (presumably classified) legal opinion issued by someone in the Obama Administration.  According to The Times, “In a 2009 debate over the Patriot Act, another member of the Intelligence Committee, Russell Feingold, Democrat of Wisconsin, also hinted that Section 215 was being used in a secret way that, he said, ‘Congress and the American people deserve to know’ about.”

Another article from The Times on the enactment of this bill is: Obama Uses Autopen to Sign Patriot Act Extension.

As of 1:00 p.m. on May 28, 2011, I could find no mention of the enactment of S.990 in the White House blog. A link on the White House Press Office’s “Signed Legislation” web page entitled PATRIOT Sunsets Extension Act of 2011 simply leads to the Library of Congress’s page with the text of the bill as enrolled.  There does not seem to be any other comment from the White House, yet.

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One Response to “2 Senators Accuse Justice Dept. of Twisting Patriot Act –”

  1. The Washington Post coverage is at It does have a quotation from the President as follows: “‘I think it is an important tool for us to continue dealing with an ongoing terrorist threat,’ Obama said Friday.”

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