Letter to Renee Ellmers

For the political science class in which I am currently enrolled, I have to write a letter to the representative of my district. In my case, this is the freshman tea-partying congresswomen Renee Ellmers. I would've sent this letter regardless of the class assignment, but its always good to kill two birds with one stone: my homework, and the comically named USA PATRIOT act.

The USA PATRIOT act is an acronym for The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. It was signed on October 26 by George Bush. That's 1 month and 15 days after the 9/11 attacks, which is hasty but possibly understandable. We had just endured the most psychologically damaging attack in US history; everyone was terrified and the consensus was to trade some of our liberties for perceived safety. Many of the provisions in the bill were set to expire in December of 2005 and then voted to be extended. Now, a vote to extend the three most controversial parts of the bill is scheduled for later today. They tried to quickly pass this bill by getting a two-thirds majority last week, but failed to do so thanks to some new tea party republicans who believe, as I do, that the PATRIOT Act is a breach of our civil liberties. Here are the provisions to be extended as described by Julian Sanchez of the CATO Institute.

Lone Wolf

So-called “lone wolf” authority allows non-citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other “foreign power.” It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”--but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional--and constitutionally significant--distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.

Roving Wiretaps

Roving wiretap authority allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be “described” rather than identified. Courts have stressed this requirement for identification of a named target as a feature that enables criminal roving wiretaps to satisfy the “particularity” requirement of the Fourth Amendment. Patriot’s roving taps, by contrast, raise the possibility of “John Doe” warrants that name neither a person nor a specific “place” or facility--disturbingly similar to the “general warrants” the Founders were concerned to prohibit when they crafted the Fourth Amendment. Given the general breadth of FISA surveillance and the broad potential scope of online investigations, John Doe warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates would be fine with making this authority permanent if it were simply modified to match the criminal authority and foreclose the possibility of "John Doe" warrants by requiring either a named individual target or a list of specific facilities to be wiretapped.

Section 215

Section 215 expanded the authority of the FISA Court to compel the production of business records or any other “tangible thing.” While previously such orders were limited to narrow classes of businesses and records, and required a showing of “specific and articulable facts” that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of “reasonable grounds” to believe records are “relevant” to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism. And the recipients of these orders are barred from Proposals to restore some of the previous checks on this power--requiring some demonstrable connection to terroris--initially received bipartisan support last year, but were torpedoed when the Justice Department objected that this limitation would interfere with a secret “sensitive collection program.” Several senators briefed on the program have expressed concern that this sweeping collection authority was being reauthorized without adequate public understanding of its true purpose

Here, in comparison, is the fourth amendment to the constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The PATRIOT act represents an erosion of the fourth amendment. Not a complete reversal - a slow erosion. This is the way the constitution is marginalized: slowly, and largely without notice. 

Congress hasn't been talking about the PATRIOT Act until this week; it is my understanding that they used the same type of maneuver the last time the act was extended in 2005. No one discusses it until the deadline, and then the only voices heard are those of the pundits and legislators that suggest democracy, freedom, and America itself are at stake unless the vote is passed. I will have a more detailed write up on my opinions on the PATRIOT Act after the vote tonight. Until then, here is my letter to Congresswoman Ellmers and her response.

Congresswoman Ellmers,

 I urge you to vote ‘No’ on the extension of the PATRIOT act. It is a denial of our fourth amendment rights and is an example of the excessive government involvement that the tea partiers abhor. The fourth amendment states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The PATRIOT Act is an example of hasty legislation in response to fear. The fear was completely understandable, we were viciously attacked by terrorists and this legislation appeared as though it may help. However, in the same way that we shouldn't give up second amendment rights in response to the Arizona shooting, we also shouldn't give up our fourth amendment rights in response to 9/11. To echo Congressman Paul, just because a law may make us somewhat safer, it is not a justification for the government to do anything it wants. Mr. Paul gave the example of putting a camera in everyone's house in order to stop child abuse and domestic violence. Would this make us safer? Possibly, but at what cost?

Thank you,

Ryan Vest

And, her response:

February 11, 2011

 

 

Dear Ryan:

 

Thank you for letting me know that you are concerned that I voted to temporarily extend three expiring provisions of the Patriot Act. I am opposed to government intrusion and regulation that stifles growth and our constitutional guarantees. But I also believe it is the role of the federal government to keep us safe and I, and many of my constituents believe the Patriot Act has kept us safe for the last ten years using the tools provided by the law to provide enhanced investigative tools that were necessary to bring the law up to speed with technology and the new threat of small groups or individuals working to harm us.

 

The three provisions we just voted to extend were the three most controversial provisions enacted when the Congress passed them after the 9-11 attack on our country and so they were subjected to a sunset clause, causing them to expire automatically after 10 years. The “Lone Wolf” provision simplifies the standard needed to obtain a court order to target a non-U.S. individual suspected of international terrorism for the same type of surveillance used to monitor foreign intelligence agents or members of an international terrorist organization. The “Roving” wiretap allows multipoint taps that follow a target, not the location or device. Previously, investigators had to seek a new court order each time they need to change the location, phone or computer that needed to be monitored, making it impossible to tap modern day electronic devices. And finally the” Business Records” provision broadens the types of records and tangible item! s that can be obtained with warrants. Some say this allows government officials to go on fishing expeditions, but the requests for such a warrant are actually subjected to more judicial scrutiny than in criminal investigations and must be renewed every six months.

 

Not having been in Congress when the law was originally passed, I voted for the short term extension of these provisions because I thought it was the responsible thing to do. I feel that the Judiciary and Intelligence Committees in the 112th Congress should have the time they need to publically debate potential changes and exercise proper oversight and thoughtful analysis about whether the need to continue these provisions for the long term is warranted when weighed against the cost to our liberties.

 

I did not think it advisable to allow these provisions to simply expire without revisiting the need for them, and discussing their role in thwarting the last several terrorist attempts against us. I have heard from many constituents who agree with me. I agree that government must be kept to a minimum, but I also think it is essential that the federal government be tasked with the responsibility to keep the nation and its citizens safe.

 

Sincerely,

Renee Ellmers

Member of Congress

RE/PS