Патриотический акт: дебаты о слежке и конституционных правах.

The American Bar Association passed resolutions on the USA PATRIOT Act that asked the U. S. Government "to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the Act before considering legislation that would extend or further expand such powers " and "to conduct regular and timely oversight including public hearings to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act do not violate the First, Fourth, and Fifth Amendments of the Constitution " They also set up a website to discuss issues in relation to the Act, and thus the Patriot Debates were born, where various people debated specific sections.

James X. Dempsey argued that Section 206, which allows for roving surveillance under FISA, was reasonable considering that investigators already had the ability to perform roving surveillance in criminal cases. However, he says that "as with so many provisions of the PATRIOT Act, the concern with Section 206 is not with the authority itself [but] rather, the issue is the lack of adequate checks and balances". Dempsey believes that the section lacks two important safeguards that are present in the corresponding legislation for criminal investigations: 1) that agents actually ascertain the location of the suspect before turning on their recording devices, and 2) that "some additional changes to FISA adopted outside of the normal process in the Intelligence Authorization Act a few months after the PATRIOT Act had the probably unintended effect of seeming to authorize "John Doe" roving taps – that is, FISA orders that identify neither the target nor the location of the interception.". He believes that an ascertainment requirement should be added to the FISA roving tap authority in to require that "in cases where the facility or place at which the surveillance is to be directed is not known at the time the order is issued, the surveillance be conducted only when the presence of the target at a particular facility or place has been ascertained by the person conducting the surveillance. ", which is part of the SAFE Act. Dempsey also believes as a result of changes made "outside the scope" of the FY 2002 intelligence authorization bill conference that changes made to , "seems to allow applications and orders that specify neither the person nor the location to be tapped" under FISA. Of this he says:

This is unprecedented, probably unintended, and probably unconstitutional. It permits the FISA court to issue a wiretap order authorizing the FBI to listen in on a telephone or e mail conversation of a person not named in the order, at any telephone or computer the unnamed person might use. He believes that it should be corrected to state that either the target or place be specified in the surveillance order. This would close off the loophole that neither the target or place be specified in the surveillance order, as is currently specified in FISA. Dempsey criticises as vague the approach taken by John Ashcroft, who Dempsey cites as saying, in a letter to Orrin Hatch, that a description must be added to the surveillance order. Dempsey finds this vague as the term "description" is not defined in FISA and could allow the U. S. Department of Justice to use a description of a "20 to 35 year old Arab male", which could potentially specify thousands of U. S. citizens. Dempsey also believes that the law should be changed so that those under surveillance via FISA should also be notified after surveillance has ceased, so that those wrongly targeted and placed under surveillance can challenge the government's actions. Paul Rosenzweig disagreed with Dempsey's premise that "relaxation of the particularity requirement is constitutionally suspect" and believed that it colored his argument that section 206 should be modified. Rosenzweig believes that the addition of an ascertainment requirement and the requirement that the identification of individuals should be more specific "seem unnecessary and unwise". He believes that the proposed ascertainment requirement would unnecessarily burden the ability of law enforcement and intelligence agents to perform surveillance on terrorist suspects. He believes that while opponents of section 206 focus on those who are innocent and yet who are the target of surveillance, this needs to be balanced with the view of those who are "concerned that during the delay while an ascertainment is being made, or in circumstances where an ascertainment is uncertain, vital terrorism intelligence will be lost". He believes that "while the balance struck by the ascertainment requirement may make sense in the traditional criminal context, it makes less sense in the context of terrorism investigations", arguing that there are already existing safeguards in place: an authorisation may only be done on those where there is probable cause that they are "a foreign power or an agent of a foreign power" and that there is probable cause that the facilities or places where surveillance is taking place is being used by a foreign power or an agent of a foreign power. He also says that "these requirements are subject to both administrative and judicial scrutiny prior to authorization". Rosenzweig further objects to the proposed ascertainment requirement because he believes that "it imposes a narrow law enforcement paradigm on the efforts to combat terrorism", a paradigm that he believes does not make sense in investigations of international terrorism, particularly in light of the September 11 terrorist attacks on the World Trade Center. Rosenzweig believes that the proposal to make it mandatory to name specific individuals in a surveillance order, or if this is not possible then having the surveillance order name the location or place that is to be under surveillance would give rise to situations that "in certain circumstances, intelligence agents might be unable to secure a warrant to conduct electronic surveillance because of the indefiniteness of their information." Rosenzweig stated that adding a requirement to specify a location that roving surveillance will be undertaken is a non sequitur. His reasoning is that the whole point of roving surveillance is that agencies cannot know for certain in what location surveillance will be undertaken and besides which the targets of surveillance will often try to thwart surveillance through such means as using "throw away" mobile phones, and other such measures. He also argues that terrorists are more slippery than even drug dealers, often taking on the identity of other real world individuals, and thus intelligence agencies will only have an alias or aliases — or in some cases on a physical description or even just a pattern of behaviour — of a terrorist. He believes that the requirement to precisely identify the individual limits the effectiveness of roving surveillance when used in a terrorism investigation. The final plank in Rosenzweig's counter argument is that even under the scrutiny of the courts, Congress and the Department of Justice no abuses have been detected under section 206, and that "even [the Patriot Act's] most ardent critics must admit that they are basing their legislative proposals on the fear of potential abuse rather than reality of actual abuse." Dempsey responded by arguing that Rosensweig confuses "the principles applicable at the trial stage of a criminal case with the much looser rules applicable at the investigative stage" when he argued that criminal standards do not apply to terrorism investigations. He argues that he is not saying that such criminal standards should be applied to terrorism investigations, but that instead criminal and terrorism investigations must be firmly based on the constitutional requirement of particularity in surveillance orders. He further reiterated his belief in the ascertainment requirement, that "the purpose of roving taps is to follow the bad guy, so unless the bad guy is being followed, the roving tap cannot and should not be activated." He says that Rosensweig "presents a false choice between fighting terrorism, on the one hand, and preserving the civil liberties of innocent people on the other" and that checks and balances are there not only to protect government interference with the innocent, but also to force them focus on the reasons behind their surveillance, which he argues strengthens their ability to do their job instead of hindering them. Dempsey further stated that Rosenzweig did not really articulate why the ascertainment requirement would be particularly onerous to intelligence agencies and that "without additional safeguards, Section 206 roving tap orders are little different from the "general warrants" that the Fourth Amendment prohibits." Rosenzweig's final answer was to challenge Dempsey's assertion that he had argued a false choice between fighting terrorism and the protection of civil liberties, instead stating that "the right answer is to seek to maximize both values to the extent it is possible". He argues that the ascertainment requirement in criminal law is defined in and is limited to oral communication, and does not apply to the interception of wire or electronic communications. Thus, he argues, the addition of an ascertainment requirement to electronic surveillance would be the addition of a completely new interpretation of the requirement and would actual hinder criminal and terrorism investigations. He further argues that the existing safeguards of minimisation — limiting what can be done under surveillance while surveillance is ongoing — is far better than a safeguard based on ascertainment, which relies on suppositions regarding future events. He believes that the "uncertainty of ascertainment will cause hesitancy in the initiation of an interception [and] through the gap created by that hesitancy will flow terrorist communications".

Andrew C. McCarthy believed that sections 214 (deals with Pen Register and Trap and Trace Authority under FISA) and 215 (expanded what records could be accessed under FISA) should be retained. He argues that Federal Rule of Investigation 17(c) authorised the compulsory production of "any books, papers, documents, data, or other objects" to criminal investigators by mere subpoena, and so section 215 merely brought FISA into line with current criminal law. He also states that the records included in section 215 are records held by third parties, and therefore are exempt from a citizen's reasonable expectations of privacy. In light of this, McCarthy believes that there are three main reasons why the access to library records is not a problem: firstly he believes that the government has always had the authority to compel the reading of records by subpoena and there has been "no empirical indication of systematic prying into private choices – else we'd surely have heard from the robustly organized librarians"; secondly he believes that in the current information age that there is just too much information for inappropriate access to such records; and thirdly he believes that an a priori ban on the investigative access to the reading of records would be both unprecedented and wrong. He points out that "literature evidence was a staple of terrorism prosecutions throughout the 1990s" and that the reading of records has already led to convictions of terrorists. McArthy also addresses the change to FISA surveillance orders; where before the government was required to provide "specific and articulable facts" to perform surveillance on an agent of a foreign power, now they must only specify that the records concerned are sought for an authorized investigation. However, he points out that it prohibits investigations that violate first amendment rights of citizens, which he says is not specified in the corresponding criminal procedures. McCarthy supports the changes made in section 215, but believes that emphasising that the order is court approved is not terribly productive as such an assertion implies "searching judicial review": if the government provides correct representation to the court then the court may not deny the order. He explains that this is not a problem, as the role of the judiciary is to "protect established constitutional interests, not create new ones as a means to micromanage investigations" and that "the order issues on the court's power, but it is not the judiciary's place to question bona fides of a co equal branch carrying out its own constitutional function". The reason the judiciary authorises such orders is to make sure the executive branch is not abusing its powers and "by requiring the FBI to make solemn representations to the court, and mandating that the Attorney General report semi annually on this provision's implementation, Section 215 provides suitable metrics for oversight and, if necessary, reform". Further, McCarthy argues that there are times when the FBI does not have any evidence to concretely prove that a person is involved in terrorism, but there are times when they have reason to believe that the individual or group are planning on or actually committing acts of terrorism — he cites the example of the FBI's investigation into Zacharias Moussaoui before the September 11 terrorist attacks; Moussaoui's flight school behavior aroused suspicion but there was no specific evidence to link him to terrorist activity. McCarthy does believe that section 215 "should be amended to clarify that order recipients may move the FISA court to quash or narrow production", however he says that the US DOJ has already decided that this is implicit in the section so it is probably unnecessary. He believes that further amendment is unnecessary and unwise, as "raising the access bar would simply encourage government to proceed by grand jury subpoena or national security letter – guaranteeing less judicial participation, more difficult congressional oversight, and the inefficiency of quash litigation in district courts throughout the country, rather than in the FISA court". On section 214, McCarthy believes that the pre Patriot Act version of FISA, which required government agencies to "certify that the monitored communications would likely be those either of an international terrorist or spy involved in a violation of U. S. criminal law, or of an agent of a foreign power involved in terrorism or espionage" was "an unnecessary and imprudently high hurdle" as pen registers and wiretaps do not violate the Fourth Amendment. Therefore, he argues, "there is no constitutional reason to require investigators to seek court authorization for them at all". Thus McCarthy says, the amendments to FISA made by section 214 are "both modest and eminently reasonable". Peter P. Swire was much more skeptical about section 214 and 215 than McCarthy. He explains that FISA originally did not apply to business records and was only designed for surveillance, and after the Oklahoma and World Trade Center bombings it was amended to apply to travel documents only. It was section 215 that made broad changes to allow access to business records. He also explains that the legal standing changed in such a way that a FISA order to access business records to could apply to anyone, and if necessary the government could ask for access to whole databases. He argues that "FISA orders can now apply to anyone, not only the target of the investigation" and that it is no longer necessary for FISA orders to be targeted against a foreign power or agents of a foreign power, but can now be used to gain records of those who have nothing to do with a foreign power. He says that there are only weak constraints to base the order on an authorised investigation and that surveillance must not be based entirely on First Amendment activities. Swire pointed out that business records obtained under FISA are different from those obtained under similar criminal legislation, in that gag orders may not be applied to criminal investigations. He also argues that the US DOJ's assertion that they can gain access to documents held by a third party because these documents are not protected by the Fourth Amendment is flawed because "it mistakenly asserts that something that is constitutional is also desirable policy". He points out that "to see this mistake, consider that a 90 percent income tax is almost certainly constitutional, but few people think it therefore would be a wise policy" In this light he argues that a better policy for sensitive library documents is to have significant oversight from the courts. In response to McCarthy's comment that "one must address the theater over library records, risibly evoking visions of DOJ Thought Police monitoring, and thus chilling, the reading preferences of Americans", Swire counters that "the debate about access to library records has been important as a symbol of possible over reaching in government surveillance, much as the Patriot Act itself has become a symbol of that concern". He points out that FISA was a response to the abuses of the Nixon government after the Watergate scandal and "revelations about systematic surveillance of journalists and of political opponents of the government" and that "standard First Amendment jurisprudence recognizes the chilling effect on expression and political activity that can result from such surveillance." He highlights Attorney General Ashcroft's statements in 2003 that section 215 had not been used to gain access to library records shows that the broad new provisions of section 215 are not necessary and that this section needs to sunset. However, failing this, he believes that different types of records could be handled differently, with library records carved out of the Act, and that "there could be deference to the medical, financial, and other privacy laws on the books". Swire also objected to the gag order provision of section 215, reasoning that a gag order is necessary for wiretaps as without secrecy the effectiveness is greatly diminished, while a record search is not diminished if secrecy is kept. He believes that the ability to speak to the press is an important First Amendment right which the gag rule takes away. He believes that the new, broader search powers of FISA combined with an inability to tell others that the order is being carried out removes an effective check against abuse of power: publicity. Swire recommends that the gag order be removed, but failing this it should be time limited and eventually revealed, and perhaps make the fact of a search announceable, but disallow the naming of the suspect. On section 214, he simply states that "In 2000, the House Judiciary Committee voted overwhelmingly to raise the standard for a pen register order from "any authorized investigation" to "specific and articulable facts." The issue for both criminal and FISA pen register orders is whether the Committee got it right at that time – whether the standard for such orders is simply too low." In response, McCarthy gave three reasons why he believes Swires was wrong. He believes that Swires gave "short shrift to the national security threat", and as national security is the highest public interest he believes that "it makes no sense to give individual interests primacy over the public's need to have foreign enemies thoroughly checked", something he believes overrules concerns about the gag rule of section 215 as he believes that "a public safety threat, however, requires reasonable balance between the public interest in disclosure and the reality that disclosure makes our enemies, to be blunt, more efficient at killing us". He does not believe that prosecution is an adequate measure as he believes that terrorist organisations should be stopped before they strike, not after. Secondly, McCarthy argues that government officials should not be hampered in their jobs, because "when government's hands are tied out of a hyper fear of corrupt behavior, the only hands being tied belong to the honest people — the occasional rogue will be a rogue no matter what the rules are"; he also believes that there is not enough time or resources for Watergate style abuses, he says "the executive branch knows that history as does the congress [and m]indful of it, they perform and oversee." Finally, McCarthy believes that the proposed changes by Swires would "merely chase investigations into the criminal justice system where none of the oversight mechanisms inherent in Section 215 exist". He ends his argument by stating that:
Assuming arguendo that Justice Department practice could temper this limitless authority, the fact is that terrorist conspiracies (al Qaeda, Hezbollah, etc.) are ongoing. Crimes are being committed, the criminal statutes are tremendously broad, and there simply is no matter remotely touching on terrorism that a grand jury is barred from investigating. In his final response, Swires summed up the debate as he saw it and ended by stating that "I try in my writings never to be alarmist. That said, the current gag rule is wildly outside of the American tradition and should be amended."

Andrew C. McCarthy argued that section 218, which changed FISA from stating that the purpose of foreign surveillance was to gather intelligence information to be the significant purpose of intelligence information gathering, should be kept even though it is already clear that this is what is meant under FISA in any case. He explains that FISA was misinterpreted to have "primary purpose" tests for surveillance for nearly a quarter century, and that in April 2002 the Foreign Intelligence Surveillance Court of Review found that,
it is quite puzzling that the Justice Department, at some point during the 1980s, began to read the statute as limiting the Department's ability to obtain FISA orders if it intended to prosecute the targeted agents–even for foreign intelligence crimes the definition of foreign intelligence information includes evidence of crimes such as espionage, sabotage or terrorism. Indeed, it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power–if he or she is a U. S. person–is grounded on criminal conduct. Similarly, McCarthy argues that the separation of foreign intelligence and criminal investigation is a false dichotomy, in that "the existence of a crime or national security threat is an objective reality, entirely independent of the investigators' subjective mindsets about why they are investigating". He believes that it is wrong "to suspect systematically dishonest resort to FISA [, as] FISA applications require a specialized and rigorous internal approval process before presentation to the court. Assuming arguendo an agent willing to act corruptly, it would be far easier and less detectable to fabricate the evidence necessary to get an ordinary criminal wiretap than to fabricate a national security reason to use FISA". McCarthy believes that over time, the U. S. Justice Department misinterpreted FISA to believe that criminal investigations could not be undertaken under FISA, but "began construing the certification not as a mere announcement of purpose but as something more restrictive: a substantive limitation on the use of FISA evidence in criminal cases". McCarthy then explains that the Foreign Intelligence Surveillance Court of Review found that ""clearly did not preclude or limit the government's use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution." McCarthy then notes the practical consequences of the U. S. DoJ's misinterpretation of FISA:
The best known pernicious consequence of all this occurred in August 2001. Relying on the wall, FBI headquarters declined to allow criminal investigators to assist an intelligence investigation seeking to locate probable terrorists Khalid al Midhar and Nawaf al Hazmi. A few weeks later, on 9/11, the pair helped hijack Flight 77 and pilot it into the Pentagon. In light of these matters, McCarthy believes that although section 218 is not legally necessary it should remain anyway, to clarify clearly what the Act says and remove any misunderstanding as to what is meant in FISA, and he believes that the section should not sunset. David D. Cole argued that the changes to the law were unnecessary, and accused the proponents of the USA PATRIOT Act of "[being] equally guilty of propagating competing myths in this debate, nowhere more so than with respect to Section 218 and the "wall." He agrees that the wall was not required by FISA, and maintains that section 218 was not sufficient to reduce barriers between information sharing amongst agencies — this, he says, was and remains a bureaucratic issue and not a statutory one. He blames the CIA not trusting the FBI, and believes that pre Patriot Act FISA was not the cause of problems of communications between the two agencies. Cole's argument is that the primary purpose test applied to acquiring foreign intelligence information when undertaking surveillance was "simply sought to reduce the risk that FISA, which permits searches on less than criminal probable cause, would become an end run around the constitutional requirement of criminal probable cause for searches conducted for criminal law purposes" and that although a secondary criminal purpose may later arise, the agency firstly must primarily gain the order to gain foreign intelligence information. He also dismissed the claims that before section 218 was enacted possible terrorist prosecution was not possible, citing the prosecution of Sami Al Arian by the U. S. DOJ, which used FISA wiretaps undertaken before the Patriot Act was enacted, which fell under the pre Patriot FISA law. He also attacks suggestions that when an investigation turned from foreign intelligence to a primarily criminal investigation then a wiretap would need to be taken down, instead positing that once it became criminal "government agents would simply have to satisfy the standards applicable to criminal investigations – namely, by showing that they had probable cause that the tap would reveal evidence of criminal conduct [and t]he tap or the search would then continue". Cole believes that the FISA is based on an untested (by the U. S. Supreme Court) assumption that FISA searches can be performed under a lower showing of suspicion than would be mandated for criminal searches. He believes that the term "foreign power" is broad enough to "[encompass] any political organization a majority of noncitizens", and though they must show reasonable evidence of a crime when targeting a U. S. citizen, the agency must only show evidence that a foreign person is an agent of a foreign power. He states that FISA was based on an "administrative search" exception to the Fourth Amendment, which relaxed the probable cause requirement for searches "where the search serves some special need beyond criminal law enforcement". However, Cole believes that the administrative search exception does not apply to criminal law enforcement, therefore when an investigation turns into a primarily criminal investigation the traditional standards of criminal probable cause would then apply. The crux of Cole's argument is that,
[b]y abandoning that distinction and allowing searches on less than probable cause where the government is primarily seeking criminal prosecution, Section 218 raises a serious constitutional question. Thus, Section 218 was not only unnecessary to bring down the wall, but may render FISA unconstitutional. Cole believes that section 218 makes it more likely "that information obtained through FISA wiretaps and searches will be used against defendants in criminal cases", and suggests that criminal defendants or their cleared counsel should be able to review "the initial application for the FISA wiretap or search when contesting the admissibility of evidence obtained through a FISA search" using "[a]n amendment requiring disclosure of FISA applications where evidence is sought to be used in a criminal trial would encourage adherence to the law by putting federal officials on notice that at some point the legality of the FISA warrant would be subjected to adversarial testing". Confidentiality could be kept by limiting access to the information to cleared council or by applying the restrictions of the Classified Information Procedures Act. McCarthy totally disagreed with everything Cole said, stating that "It is apt that Professor David Cole begins the title of his response 'Imaginary Walls[.]' His submission is largely imaginary, creating rather than relating 'myths' about the structural impediments to good intelligence that plagued the pre 9/11 world." He believes that Cole's whole argument is pinned to the belief that FISA in unconstitutional, something McCarthy totally disagreed with. In McCarthy's mind, Cole's objection to FISA is that he believes, incorrectly, that under the Fourth Amendment searches are "inappropriate absent probable cause of a crime". He argues that Cole is wrong when he states that FISA requires a lower standard of suspicion to authorise searches, but rather it requires a different standard than is required of criminal searches. McCarthy says Cole's "suggestion that a 'foreign power' under FISA could be any 'political organization' predominantly of non citizens is overwrought", and that only those organisations proven to be engaged in clandestine operations will be targeted. He also says that Cole is wrong in that under FISA government searches and surveillance were never restricted to searches whose primary purpose was intelligence gathering, and therefore section 218 is not constitutionally suspect. McCarthy says that though the enforcing of a wall between criminal and foreign investigations under FISA was a misunderstanding by the U. S. DOJ, the reality was that the misunderstanding of the Act did not mean that structural restrictions were not established. He ends by stating that "[n]o one claims the wall tainted the propriety of intelligence gathering. It blocked sharing of the intelligence gathered. That is the bureaucratic monstrosity dismantled by Section 218 Without that clarification of law, the disastrous primary purpose doctrine would be undisturbed, the unnecessary wall would still be in place, dots would remain unconnected, prosecutions like al Arian would not have occurred, and the United States would be at considerably greater risk." In his final response, Cole defended himself, stating that his argument about the constitutionality of section 218 was because it "deprives FISA of its constitutional justification" — previously, he says, FISA searches were justified without reasonable cause justifications because they fell under an "administrative search" exception in the constitution. However, Cole says that the Supreme Court has held that this "does not apply where the government's purpose is criminal law enforcement". Now that the Patriot Act makes foreign intelligence gathering the significant and not sole reason for FISA searches, allowing for criminal searches under FISA, Cole believes that such searches would then by on constitutionally shaky ground. Cole argues that McCarthy's argument is based on a false premise: that section 218 is constitutional because, in McCarthy's words, "[it] mandat[es] that intelligence gathering be "a primary purpose", [and] constrains the government in a way that neither the Fourth Amendment nor FISA does". Cole disputes this, and says that "the very purpose of Section 218 was to eliminate the 'primary purpose' requirement". Cole also believes that McCarthy is wrong when he asserts that FISA targets only those "foreign powers" engaged in intelligence gathering, sabotage or international terrorism (McCarthy cited ). Cole cites , where FISA defines a "foreign power" as "a foreign based political organization, not substantially composed of United States persons." and defines an "agent" of a foreign power to be those who are "an officer or employee of a foreign power." This, he says, is too broad, giving the example where a "British citizen working here as an employee of Amnesty International is an 'agent of a foreign power.'". Cole finally points out that McCarthy does not address his suggestion that "[FISA] should be amended to permit defendants in those prosecutions access to the FISA applications to challenge the warrant's validity".