S. 2088 - National Security Reform Act of 2007
Senator Feingold's Senate Floor Introduction of the Bill
Mr. FEINGOLD. I am pleased today to introduce the National Security Reform Act of 2007, a bipartisan effort that has the support of Senators who I respect a great deal, and with whom I have worked over the years on the Patriot Act and other issues. It also has the support of organizations and activists across the political spectrum.
This past spring, the Inspector General of the Justice Department issued the results of a congressionally mandated audit, an audit that examined the FBI's implementation of its dramatically expanded authority under the USA PATRIOT Act to issue National Security Letters, or NSLs. The Inspector General found, as he put it: ``widespread and serious misuse of the FBI's national security letter authorities. In many instances, the FBI's misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI's own internal policies.'' A subsequent internal audit conducted by the FBI itself confirmed the IG's findings.
After the IG report came out, the Judiciary Committee heard from the Inspector General himself, who described his conclusions in detail, and from the FBI Director, who talked about some steps the FBI is taking in response to the report.
I appreciate that the FBI agrees with the IG's conclusions and recognizes that it needs to change the way it does business when it comes to NSLs. But in my view, leaving it to the FBI to fix this problem is not enough.
Unfortunately, Congress shares some responsibility for the FBI's troubling implementation of these broad authorities. The FBI's apparently lax attitude and in some cases grave misuse of these potentially very intrusive authorities is attributable in no small part to the USA PATRIOT Act. That flawed legislation greatly expanded the NSL authorities, essentially granting the FBI a blank check to obtain some very sensitive records about Americans, including people not under any suspicion of wrong-doing, without judicial approval. Congress gave the FBI very few rules to follow and failed to adequately remedy those shortcomings when it considered the NSL statutes as part of the Patriot Act reauthorization process.
This Inspector General report proves that ``trust us'' doesn't cut it when it comes to the Government's power to obtain Americans' sensitive business records--without a court order and without any suspicion that they are tied to terrorism or espionage. It was a significant mistake for Congress to grant the Government broad authorities and just keep its fingers crossed that they wouldn't be misused.
Congress has the responsibility to put appropriate limits on government authorities--limits that allow agents to actively pursue criminals, terrorists and spies, but that also protect the privacy of innocent Americans.
In addition, a Federal district court recently struck down one of the new NSL statutes, as modified by the Patriot Act reauthorization legislation enacted in 2006. The court found that a statutory provision permitting the FBI to impose a permanent, blanket nondisclosure order on recipients of NSLs violated the First Amendment.
Congress also has not provided sufficient privacy protections to govern the related authority in Section 215 of the Patriot Act, which permits the Government to obtain court orders for Americans' business records under the Foreign Intelligence Surveillance Act. Often referred to as the ``library'' provision, although it covers all types of business records, Section 215 was one of the most controversial provisions in the Patriot Act. Unfortunately, Congress did not go nearly far enough in the reauthorization process in addressing the very legitimate privacy and civil liberties concerns that have been raised about this power, including with respect to the low standard the Government has to meet to obtain a Section 215 order, the entirely insufficient judicial review provisions, and the lack of other procedural protections.
All of this is why a bipartisan group of Senators, three Democrats and three Republicans, are introducing the National Security Letter Reform Act of 2007.
The bill places new safeguards on the use of National Security Letters and related Patriot Act authorities to protect against abuse. It restricts the types of records that can be obtained without a court order to those that are the least sensitive and private, and it ensures that the FBI can only use NSLs to obtain information about individuals with some nexus to a suspected terrorist or spy. It makes sure that the FBI can no longer obtain the sensitive records of individuals three or four times removed from a suspect, most of whom would be entirely innocent.
It prevents the use of so-called ``exigent letters,'' which the IG found the FBI was using in violation of the NSL statutes. It requires additional congressional reporting on NSLs, and it requires the FBI to establish a compliance program and tracking database for NSLs. It requires the Attorney General to issue minimization and destruction procedures for information obtained through NSLs, so that information obtained about Americans is subject to enhanced protections and the FBI does not retain information obtained in error.
On Section 215, the legislation establishes a standard of individualized suspicion for obtaining a FISA business records order, requiring that the government have reason to believe the records sought relate to a suspected terrorist or spy or someone directly linked to a suspected terrorist or spy, and it creates procedural protections to prevent abuses. The bill also ensures robust, meaningful and constitutionally sound judicial review of both National Security Letters and Section 215 business records orders, and the gag orders that accompany them.
This legislation is a measured, reasonable response to a serious problem. The NSL authorities operate in secret. The Justice Department's classified reports to Congress on the use of NSLs were admittedly inaccurate. And when, during the reauthorization process, Congress asked questions about how these authorities were being used, we got empty assurances and platitudes that we now know were mistaken.
Oversight alone is not enough. Congress also must take corrective
action. The Inspector General report has shown both that the executive
branch cannot be trusted to exercise those powers without oversight
and that current statutory safeguards are inadequate. This National
Security Letter Reform Act is the answer.