AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON LAW AND NATIONAL SECURITY
Experts Debate the USA PATRIOT Act
Stewart A. Baker and John Kavanagh
Editors
With an introduction by ABA President Robert}, G~ey
k'
~£~
I,,'
cL/?·O
~ 1 '
. P31
j (",1'\5'
r't.,."", t........
"
IB\
AMERICAN
BAR ASSOCIATION
Defending Liberty
Pursuing Justice
.
Cover design by ABA Publishing
This publication was produced with the generous support of the Dr.
Scholl Foundation.
The materials contained herein represent the opinions and views of the
authors and/or the editors, and should not be construed to be the views
or opinions of the law firms or companies with whom such persons are in
partnership with, associated with, or employed by, nor of the American
Bar Association unless adopted pursuant to the bylaws of the Association. The views expressed herein have not been approved by the House
of Delegates or Board of Governors of the American Bar Association and
should not be construed as representing policy of the ABA.
Nothing contained in this book is to be considered as the rendering of
legal advice for specific cases, and readers are responsible for obtaining
such advice from their own legal counsel. This book and any forms and
agreements herein are intended for educational and informational purposes only.
© 2005 American Bar Association. Some rights reserved. This work is
licensed under a Creative Commons license: Attribution-Non-Commercial-No
Derivs 2.0. For permission and further information contact
the ABA Copyrights & Contracts Department, copyright@abanet. org
or via fax at (312) 988-6030.
09 08 07 06 05
5 4 3 2 1
Cataloging-in-Publication
data is on file with the Library of Congress
Baker, StewartA.
Patriot debates I Stewart A. Baker, editor
ISBN 1-59031-537-5
Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar
Association, 321 North Clark Street, Chicago, Illinois 60610.
www.ababooks.org
Patriot Debates
Conclusion
One of the most basic protections against government abuses has
been the principle that a government agency should only collect information about individuals that it needs for a specific and articulated purpose, should use it only for the purposes for which it was
collected, should not keep it any longer than necessary, and should
not share it with other government agencies except for very good
reasons. The PATRIOT Act violates that principle by adopting the
approach that myriad government agencies should collect, share, and
maintain forever as much information on as many people as possible.
Requiring the minimal protection that the government articulate why
specific information could be useful for counterterrorism before
widely distributing it would help keep the government focused on
the information needed to locate the next attackers, instead of warehousing personal information about millions of Americans.
Viet Dinh
Reply
Passed soon after the terrorist attacks of 9/11, the USA PATRIOT
Act is among the most important legislative measures in American
history. The Act enables the government to fight what will undoubtedly be a long and difficult war against international terrorism.
The specific terrorist prevention successes enabled by the Actoutlined in numerous public briefings and summarized in two comprehensive reports to Congress-justified the Department of Justice's
conclusion that its job. in securing the safety of America and her
people in the years since September .11"would have been much more
difficult, if not impossibly so, without the USA PATRIOT Act."
That success is attributable not only to the collection of more
information on terrorist plots, but also to the smarter use of terrorist information collected by the government. Before the Act, the
law sharply limited the ability of law enforcement officers to share
information with intelligence personnel-even when both halves were
10
Section <203:Authority to Share Criminal Investigative Information
working on the same investigation. Through a series of provisions in
the USA PATRIOT Act, Congress removed the legal barriers that
created the culture of segregation and distrust among the various
bureaucracies engaged in the common fight against terrorism.
The investigation and prosecution of the "Lackawanna Six" illustrates the practical impediments of a culture of segregation. In
2001, six members of an Al Qaeda cell in Lackawanna, New York,
traveled to Afghanistan for training at an Al Qaeda-affiliated camp.
The investigation originated when FBI officials received a letter
alleging the residents' involvement with foreign terrorists and criminal activities. In order to retain the option of using FISA, the FBI
determined that the law required establishing two separate, simultaneous investigations: an intelligence investigation concerning ter.rorist threats, and a criminal investigation involving possible drug
crimes. The two squads operated independently in the following
months, often prohibited from even standing in the same room
during briefings to discuss their respective cases. Thus, investigators on both sides were unable to obtain a complete picture of either the terrorist or the criminal activity.
The USA PATRIOT Act erased the statutory impediment to information sharing and provided the impetus to remove the bureaucratic and cultural barriers .to cooperation. In the case of the
Lackawanna investigation, law enforcement agents were able to learn
from intelligence officials that an individual named in the anonymous letter was an agent of Al Qaeda. Additional information shared
between intelligence and law enforcement personnel dramatically
expedited the investigation. As a result, five of the six suspects pleaded
guilty to providing material support to Al Qaeda, and the sixth pleaded
guilty to conducting transactions unlawfully with Al Qaeda.
Among the information-sharing
provisions was the Act's
amendments to grand jury secrecy rules. If a federal prosecutor
learned during grand jury testimony that terrorists were planning
to detonate a bomb in Manhattan in the next 30 minutes, Federal
Rule of Criminal Procedure 6(e) prevented him from immediately
notifying national security officials not directly participating in the
11
Patriot Debates
investigation. Section 203 of the Act now permits sharing of grand
jury information regarding foreign intelligence with federal law
enforcement, intelligence, protective, immigration, national defense, and national security personnel. Disclosures under section
203 have been used to support the revocation of visas of suspected
terrorists and prevent their reentry into the United States, track terrorists' funding sources, and identify terrorist operatives overseas.
Even the most strident of opponents of the USA PATRIOT Act
would not want another terrorist attack to occur because law enforcement and intelligence communities were prevented from talking to each other. If a grand jury investigation uncovers evidence
about a foreign terrorist cell, there should be some mechanism for
the sharing of this information with the intelligence community.
Section 203, essential as it is, does raise important questions
about how we approach law enforcement and domestic intelligence.
Congress grappled with these issues and placed restrictions on the
use of grand jury information-weighing
the need for secrecy in
the proceedings with the protection of the citizenry from attack.
For instance, the official who receives such information may use it
only in the course of his official duties and is subject to the rules
regarding the unauthorized disclosure. Thus, only those who need
the information to do their job potentially have access to it. In addition, any time grand jury information is shared, the government
is required to notify the supervising court and identify the departments that received it.
More important, the USA PATRIOT Act does not permit or
require the sharing of all-or even most-grand jury or criminal
investigative information with the intelligence community. Section
203 of the Act expressly limits disclosure to foreign intelligence
information. The Act defines the term foreign intelligence to include information relating to the ability of the United States to
defend itself against terrorism, sabotage, and clandestine intelligence activities of foreign powers, as well as information relating
to "national defense" or "the conduct of ... foreign affairs." Rather
than open up all criminal investigations to the intelligence commu-
12
Section 203: Authority to Share Criminal Investigative Information
nity, the Act appropriately restricts the information to the type necessary to counter a threat from abroad. The vast majority of criminal
investigations do not contain such information.
In addition, pursuant to the requirements of the USA PATRIOT
Act, the Attorney General established procedures to ensure that the
information is used appropriately. These procedures require that
law enforcement agents, before disclosure to intelligence agencies,
label all information identifying a U.S. person. Moreover, upon
receipt of information from law enforcement that identifies a U.S.
person, intelligence agencies must handle that information pursuant to specific protocols. These protocols, for example, require that
information identifying a U.S. person be deleted from the intelligence information except in specified circumstances.
Those in the privacy advocacy industry, of course, would prefer tighter strictures to sharing of government information. Such
ham-fisted obstinacy, however, comes with a cost, in terms of both
privacy and efficacy. Preventing government from using infonnation smartly will heighten the need for government to collect information more broadly. And bureaucratic strictures threaten to reconstruct the wall between intelligence and law enforcement. Information sharing must be guided by practical guidelines that simultaneously empower and constrain officials, clearly articulating
what is and is not permitted.
Karl Llewellyn once wrote, "Ideals without technique are a
mess. But technique without ideals is a menace." As Congress engages in the legislative effort to renew the USA PATRIOT Act, it
behooves us to reaffirm the ideals of democracy and freedom and
also to discern the techniques necessary to safeguard those ideals
against the continuing threat of terrorism.
Kate Martin
Response
Professor Dinh's defense of sections 203 and 905 is long on
rhetoric and short on substance. In particular, he fails to respond to
13
Patriot Debates
Deputy Attorney General Corney's exhortation to discuss the details
ofthese sections.
First, Professor Dinh makes no case about why the broad new
authority in sections 203 and 905 is necessary. Even in his telling
of it, the pre-9/ll rules on safeguarding sensitive grand jury information and wiretap intercepts which are amended by section
203, had nothing to do with the investigation of the individuals
in Lackawanna. (Section 203 is irrelevant to the issues he identifies: intelligence officials not sharing information with law enforcement and the FBI's misreading of FISA.) Likewise, Professor Dinh's hypothetical grand jury testimony about a bomb in
New York was anticipated by the Clinton Justice Department,
whose Office of Legal Counsel opined in 1993 and 1997 that under then-existing law, prosecutors would be free to disclose such
information to national security officials even without prior judicial approval.
Second, Professor Dinh makes no argument against amending sections 203 and 905 to provide some modest protections.
The proposed amendments-limiting
shared information to information relating to terrorism, limiting its dissemination to officials working on terrorism, requiring judicial approval, and requiring marking to prevent redissemination-would
not interfere
with the necessities of counterterrorism. Indeed, Professor Dinh
has failed to identify any instances of information sharing that
would be prevented if the proposed amendments to sections 203
and 905 were made. Information about suspected terrorists like
those in Lackawanna or bomb threats could still be shared.
On the other hand, the current law offers no protections against
abuse. While Professor Dinh argues that not all information from
criminal investigations may be shared, that is no answer to the fact
that too much information will be turned over to the CIA and others, including virtually all information about any American's contacts with any foreigner or foreign group, including humanitarian
organizations, for example. While Professor Dinh repeats the Justice Department's misleading claim that intelligence agency proto-
14
Section 203: Authority to Share Criminal Investigative Information
cols require that information about Americans be deleted "except
in specified circumstances," those circumstances are in fact so broad
as to allow intelligence agencies to keep all information obtained
under section 203 or 905. See E.O. 12333 section 2.3. Existing
rules provide virtually no protection against authorized government compilation of dossiers on millions of Americans and use of
those dossiers in intelligence operations.
By dealing seriously with the current authorities allowing the
building of massive intelligence databases on any American with
foreign contacts, Congress could also accomplish the important
task of forcing bureaucracies to identify and focus on information that is actually useful in preventing another attack.
Viet Dinh
An Indispensable Tool in the War on Terror
Section 203 both standardizes and restrains the powers of our
men and women in blue, illustrating not the false trade-off between liberty and security presented in Ms. Martin's essays, but
their mutual reinforcement. Rolling back this provision would
return our country to the culture of separation and bureaucratic
segregation that hindered effective terrorist prevention.
Ms. Martin's response underestimates the tools necessary to
prevent and detect complex webs of terrorist activity. In particular, her contention that all shared information should be first established as terrorism-related information underscores the very
crux of the problem-the
full relevance of information is often
only apparent after information is shared between criminal and
intelligence investigations. You cannot connect the dots before all
the dots are even on the drawing board.
Moreover, while prior law provided for some dissemination of
information, Ms. Martin fails to note how restrictions were so convoluted that agents frequently hesitated from working openly with
other government entities. Section 203 has been widely heralded
15
Patriot Debates
by investigators for helping to clarify confused interpretations and
promote a more coordinated and efficient team approach to
counterterrorism. Only recently, FBI Director Mueller testified that
section 203 has greatly enhanced the FBI's relationships with state,
local; and other federal agencies in the common effort to fight ter-
rorism.
16