In an effort to allow further debate, Congress recently voted to push back by ninety days the February 28 expiration date of three controversial provisions of the Patriot Act. The provisions, which critics say create civil liberty concerns, include roving wiretaps, increased access to business records, and so-called "lone wolf" tracking capabilities. They represent some of the enhanced surveillance powers established after 9/11 to help law enforcement conduct counterterrorism investigations. Matthew Waxman, a CFR expert on law and foreign policy, expects all three provisions to be extended into the near future, but suggests there remains "a major question concerning the adequacy of oversight for these powers." He explains the expirations built into these types of laws help keep government "in check" by triggering renewed debate based on experience. In supporting these extensions, he adds, the Obama White House is seeking "continuity" with much of the counterterrorism policies advocated by the Bush administration.
Could you talk a little bit about these provisions and their particular significance?
In the immediate aftermath of 9/11, Congress overwhelmingly passed the first Patriot Act, which did a few things: It gave national security investigators more powers to collect information inside the United States; it also reduced restrictions on the sharing of that information within the government, for example, between law enforcement agencies and intelligence agencies. These reforms were seen as important to remedy pre-September 11 deficiencies or obstacles that may have prevented the government from connecting the dots necessary to prevent terrorist attacks.
Some of the provisions in the Patriot Act are set to expire unless Congress passes a bill to renew them. One of those provisions, for example, gives government national security investigators greater powers to obtain business records in the course of investigations. Another gives the government the authority to obtain roving wiretaps. Roving wiretaps are seen as necessary to keep up with changing technology--as a way to avoid having to get a new warrant each time a suspect changes his communication device. And then the final one, which is complicated and was actually added a few years after the first Patriot Act, is the so-called "lone wolf" provision.
And what is the "lone wolf" power?
There are basically two tiers of legal restrictions on government surveillance powers inside the United States. There’s one set of rules for fighting crime, where the restrictions on government surveillance are quite high: The government, in order to monitor communications of a suspect, has to go to a judge and show probable cause that the suspect has committed a crime. The other tier is for [surveillance of] foreign powers like spies of an enemy government or agents of specifically designated terrorist organizations. For that kind of surveillance, the government goes to the Foreign Intelligence Surveillance Court and only has to meet a lower standard in order to get a warrant to monitor communications.
The question with respect to lone wolf terrorists is this: Suppose a foreigner comes to the United States and is suspected of terrorism but isn’t affiliated with a specific foreign terrorist organization--should we treat that individual like a criminal, and subject the government to the tighter restrictions on surveillance, or treat that more like a foreign intelligence case where we would use the lower standards and the special foreign intelligence court? What the lone wolf provision says is the government can treat a lone wolf terrorist like that second category, in which restrictions on government surveillance are less constraining.
Ultimately, the bulk of these powers will almost certainly be renewed, and I expect that the ninety-day extension will be used to negotiate some additional oversight provisions and perhaps some tighter restrictions on investigators’ access to business records.
Both houses of Congress just passed a ninety-day extension for these provisions, which the president will likely sign before the end of the month. What is your take on the vote and the implications for the congressional debate in the coming months?
There’s some resistance to these provisions by members of Congress from both the far left and the far right. Ultimately, the bulk of these powers will almost certainly be renewed, and I expect that the ninety-day extension will be used to negotiate some additional oversight provisions and perhaps some tighter restrictions on investigators’ access to business records. Many of the Patriot Act’s original provisions--including some of those at issue today--were necessary to bring intelligence law up to date in dealing with contemporary challenges. But a value of these sunset clauses--[which are] requirements that Congress reauthorize or amend them after a period of time--is that they help keep the government in check and prompt reconsideration as time passes based on experience.
The Obama administration supports these extensions. What’s your assessment of how the White House has dealt with the legalities related to national security?
I’m not surprised to see the Obama administration pressing for renewal of these powers. The Obama administration [has], on the whole, looked to extend the kinds of legal authorities that the Bush administration pushed for and got approval for from Congress. Across a number of issues--including military commissions, detention power, and now in the world of surveillance--we’ve seen quite a bit of continuity between the end of the Bush administration and the new Obama administration, especially with regard to national security powers legislated by Congress.
What are the civil liberties concerns with these particular provisions?
There are two types of civil liberties concerns that arise. One is a concern about individual invasion of privacy: that the government is going to collect more information on individuals than it needs to, or that it is going to collect information on the wrong individuals. Another related concern is that these kinds of surveillance powers have historically been prone to abuse. Some of the legal restrictions on surveillance that the Patriot Act was designed to roll back were actually the direct product of abuses by the FBI, the CIA, and other government agencies. During the 1960s and ’70s, national security intelligence powers were used by government agents to spy on political opposition [and] cast abusively wide nets. That legacy of abuse has raised a lot of concerns about whether there is adequate oversight with respect to these new surveillance powers.
Much of the Patriot Act has been made permanent; do you feel these provisions will meet a similar fate in the long term?
Congress has generally done a pretty good job of trying to strike reasonable balances and then follow up and press government agencies on how they’re using these powers, in what ways, and to what effect.
My best guess is that all three will be renewed largely intact and probably continue to be renewed into the future, though perhaps with additional oversight provisions or some small changes. A major question concerns the adequacy of oversight for these powers. Where do you set the line in terms of what the government can and can’t collect, and what kind of oversight or monitoring do you put in place to make sure that the government is following those rules? This includes things like internal oversight within the Justice Department and the FBI, and it also includes continuing congressional oversight in the form of hearings and auditing what the agencies are doing and collecting. I think that’s where a lot of the continuing debate is going to lie: Is there adequate oversight to make sure that these kinds of provisions are used properly?
How do you think that Congress has done so far in terms of its oversight powers or responsibilities?
On the whole, Congress has generally done a pretty good job of trying to strike reasonable balances and then follow up and press government agencies on how they’re using these powers, in what ways, and to what effect. One difficulty is that these issues do end up getting quite politicized. And one danger of these powers is that once the government is given certain counterterrorism intelligence authorities, it becomes very difficult to unwind them or get the government to give them up. They tend to gain a certain momentum.
If Congress doesn’t extend these provisions, what would be the immediate implications for the FBI and other counterterrorism agencies?
One fear among the intelligence and law enforcement agencies is that when these authorities expire, some of the tools that the government has been accustomed to using will, in a sense, go dark. The government will lose its authority to use roving wiretaps to gain access to certain types of information until, perhaps in the future, Congress does reauthorize. So, there is this looming deadline that puts pressure on Congress to try to come to some resolution here quickly.