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May 23, 2005

The Honorable Pat Roberts
Chairman
Senate Select Committee on Intelligence
211 Hart Senate Office Building
Washington, DC 20510

The Honorable John D. Rockefeller IV
Vice Chairman
Senate Select Committee on Intelligence
211 Hart Senate Office Building
Washington, DC 20510

Dear Chairman Roberts, Vice Chairman Rockefeller, and Members of the Committee:

The Electronic Privacy Information Center (EPIC) is writing today to urge the Senate Select Committee on Intelligence to give careful consideration to whether provisions of the USA PATRIOT Act should be renewed as written. We also urge you to oppose the broadening of the FBI's investigative powers in the absence of evidence that such expansion is necessary. We ask that this statement be included in the record for this Committee's May 24, 2005 hearing.

EPIC opposes the wholesale reauthorization of sunsetting provisions of the USA PATRIOT Act, as well as the extension of the FBI's investigative powers without a demonstration of clear need from the executive branch. Such cursory review of the law clearly contradicts the recommendation of the 9/11 Commission that:

[t]he burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.[1]

The Commission further stated, "[b]ecause of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy."[2] T his Committee would abdicate its responsibility to supervise the FBI's investigative powers if it failed to give thoughtful consideration to whether modifications to the USA PATRIOT Act are necessary, as well as whether expanded foreign intelligence authority is actually needed to ensure national security.

I. No PATRIOT Act-Related Legislation Should Be Approved By This Committee Without Careful Consideration.

First and foremost, EPIC opposes reauthorization of all sunsetting provisions of the USA PATRIOT Act without so much as a single modification to the law. Indeed, even Attorney General Alberto R. Gonzales has stated repeatedly that some changes to the law are necessary. For instance, the Attorney General testified before the House Judiciary Committee that Section 215 of the Act should be amended to permit an individual served with an order for "any tangible things" under that section to consult an attorney and challenge the order if desired, a right which is not explicitly provided in the statute.[3] Furthermore, the Attorney General noted that Section 215 allows the FBI to compel the production of materials only that relate to a national security investigation, though the provision does not specifically state that.[4] The Department of Justice supports amending the section to clarify these points.[5]

Though EPIC urges Congress to undertake a more substantial amendment of Section 215 than the government supports, it is undisputed that Section 215 should not be renewed as currently written. The agreement between the Department of Justice and critics of the USA PATRIOT Act on this point demonstrates how vital it is that this Committee carefully consider each sunsetting provision of the USA PATRIOT Act and determine whether modifications are appropriate, rather than simply voting to renew all sunsetting provisions as written.

II. Congress Should Not Expand the FBI's Authority to Allow the Agency to Demand Mail Covers.

In addition to reauthorizing provisions of the USA PATRIOT Act, this Committee is considering substantial expansions of the FBI's authority to obtain information in foreign intelligence and terrorism investigations. Among the provisions currently being considered is one that would give the FBI greater authority to demand that the United States Postal Service perform mail covers.

The Postal Inspection Service is one of the oldest law enforcement agencies in the federal government.[6] It has developed its mail cover program in consultation with the FBI, in part to correct government abuses of mail that occurred in past decades,[7] and also to ensure that each mail cover request is appropriately formulated and carried out. Under current regulations, the Chief Postal Inspector may approve a mail cover for national security purposes when the FBI submits a written request to the Inspector that "specifies reasonable grounds to demonstrate the mail cover is necessary to protect the national security[.]"[8] Under the proposed legislation, the Chief Postal Inspector "shall comply with each request for mail covers" if an authorized FBI official:

certifies in writing to the United States Postal Service that such mail covers are relevant to an authorized investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.[9]

This drastic change would eliminate the Postal Service's ability to exercise any oversight in the formulation or execution of a mail cover performed for one of these specified purposes. This would apply to situations in which a mail cover appears to be overreaching or an abuse of power, as well as cases in which a mail cover is overly burdensome or logistically impossible for the Postal Service to carry out as ordered.

Furthermore, the proposed bill includes a nondisclosure requirement that would prohibit any agent of the Postal Service from disclosing the fact that the FBI ordered a mail cover except to those whose cooperation is necessary to comply with the request, an attorney, or with the permission of the director of the FBI (or a designee).[10] Such a sweeping nondisclosure agreement is of questionable constitutionality, particularly considering that the proposal specifically permits a recipient of a mail cover demand to consult a lawyer "to obtain legal advice with respect to testimony or the production of records in response to the request," though not explicitly to challenge the demand or nondisclosure requirement in court.[11]

The executive branch has not publicly demonstrated a need for increased authority to conduct mail covers, and there is no indication that such authority is necessary for the FBI to ensure national security. In fact, the Postal Service maintains that it has "not formally rejected any requests from the bureau in recent years."[12] If there is no evidence that this increased investigative power will materially enhance security, Congress should not give it to the FBI.

III. Congress Should Not Expand the FBI's Authority to Allow the FBI to Issue Administrative Subpoenas in Foreign Intelligence and Terrorism Investigations.

Perhaps the most critical expansion of power this Committee is considering would permit the FBI to issue "administrative subpoenas" in foreign intelligence and terrorism investigations. Even Section 215, which the Attorney General concedes is the "most controversial provision in the USA PATRIOT Act,"[13] and which has generated substantial concern among members of Congress, does not permit the FBI to unilaterally demand records. The measure the Committee now considers would give the FBI that extraordinary authority, which is traditionally reserved for agencies investigating highly regulated industries.

Incredibly, the proposal the Committee is considering goes even beyond the subpoena authority the FBI has publicly sought. Though FBI Director Robert Mueller has asked Congress to extend the FBI administrative subpoena authority in foreign intelligence and terrorism investigations, he stressed that any proposed administrative subpoena power "should provide the recipient the ability to quash the subpoena on the same grounds as a grand jury subpoena."[14] The proposed legislation before the Committee would not, however, utilize this standard to quash an administrative subpoena. Under the Federal Rules of Criminal Procedure, "the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."[15] The proposed legislation, however, would require a recipient to meet a much stricter standard to quash an administrative subpoena: "[a] court may modify a subpoena under this section only if compliance with the subpoena would be unreasonable or oppressive. A court may set aside a subpoena under this section only upon a showing of abuse by the official issuing the subpoena."[16]

Furthermore, it is unusual for a statute authorizing administrative subpoenas to include a provision requiring that the recipient of the subpoena not disclose its existence if the government does not obtain a specific court order to that effect. Most administrative subpoena laws that provide for nondisclosure do so only pursuant to a court's approval.[17]

The proposed legislation before this Committee will not only provide the FBI with unnecessary powers, but reaches far beyond any authority the FBI has publicly sought and endangers civil liberties. There is no evidence that these powers are necessary to protect national security. The 9/11 Commission recommended that the executive bear the burden of demonstrating that investigative powers materially enhance security, and the Attorney General has agreed that changes to existing USA PATRIOT Act authority are necessary. For these reasons, we ask the members of this Committee to carefully consider each sunsetting provision of the USA PATRIOT Act before voting to reauthorize. We also ask the Committee to oppose an expansion of the FBI's investigative authority unless the agency can actually demonstrate that additional powers are necessary.

Thank you for your consideration of these issues.

Sincerely,

Marc Rotenberg
Executive Director

Marcia Hofmann
Director, Open Government Project
EPIC


[1] National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report 394-395 (2004).

[2] Id. at 394.

[3] Hearing on the USA PATRIOT Act: Hearing Before the Senate Comm. on the Judiciary, 109th Cong. (April 5, 2005) (testimony of Alberto R. Gonzales, Attorney General, Department of Justice) ("The text of Section 215 . . . is not as clear as it could be in these respects. The department, therefore, is willing to support amendments to Section 215 to clarify these points."); see also Hearing on USA PATRIOT Act: Hearing Before the Senate Select Comm. on Intelligence, 109th Cong. 6 (April 27, 2005) (written statement of Alberto R. Gonzales, Attorney General, Department of Justice, and Robert S. Mueller III, Director, Federal Bureau of Investigation).

[4] Id.

[5] Id.

[6] United States Postal Service, U.S. Postal Inspection Service: Who We Are at http://www.usps.com/ postalinspectors/missmore.htm (last accessed May 23, 2005).

[7] See, e.g., Final Report of the Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-775, 94th Cong., 2d Sess., Book II, 139 (1976) ["Church Committee report"]. Upon finding that intelligence agencies engaged in covert "mail opening programs" for years, the Church Committee made a number of recommendations to protect mail from such activity, including that the Postal Service "centralize the review and approval of all requests by requiring that only the Attorney General may authorize mail cover, and [ ] eliminate unjustified mail covers by requiring that the mail cover be found 'necessary' to a domestic security investigation." Id. at 315.

[8] 39 C.F.R. § 233.3 (e)(2)(i).

[9] S. ___, A Bill to reauthorize certain provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 and the Intelligence Reform and Terrorism Prevention Act of 2004, to clarify certain definitions in the Foreign Intelligence Surveillance Act of 1978, to provide additional investigative tools necessary to protect the national security, and for other purposes, 109th Cong. at 212(a)(2) (May 13, 2005) [hereinafter "Bill"]. Officials authorized to make such requests include actual or acting Special Agents in Charge in FBI field offices, if so designated by the director.

[10] Id.

[11] See Doe v. Ashcroft, 334 F. Supp. 2d 471, 475 (S.D.N.Y. 2004) (finding that 18 U.S.C. 2709 is unconstitutional because, among other things, the statute "violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of a[ national security letter] request.").

[12] Eric Lichtblau, "Plan to Let F.B.I. Track Mail in Terrorism Inquiries," NY Times, May 21, 2005, at A9.

[13] Hearing on the USA PATRIOT Act: Hearing Before the House Comm. on the Judiciary, 109th Cong. 16 (April 5, 2005) (written statement of Alberto R. Gonzales, Attorney General, Department of Justice).

[14] Hearing on the USA PATRIOT Act: Hearing Before the Senate Comm. on the Judiciary, 109th Cong. 9 (April 5, 2005) (written statement of Robert S. Mueller III, Director, Federal Bureau of Investigation).

[15] Fed. R. Crim. P. 17(c)(2).

[16] Bill at 213(a).

[17] See, e.g., 12 U.S.C. 3409(h); 15 U.S.C. 78u(h)(4)(A); 18 U.S.C. 2706(b); 8 U.S.C. 3486(a)(6)(A).


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