In a post on Thursday entitled “What Did the USA FREEDOM Act Actually Amend?,” Megan Graham of Just Security carefully described a huge problem with the USA FREEDOM Act, one that the Administration and the Congress should not ignore.
Simply put, key provisions of the legislation as passed by the House had been drafted on the assumption the Senate would act, and that the President would sign the bill into law, before the sunset on June 1 of title V of the Foreign Intelligence Surveillance Act, popularly referred to as section 215 of the PATRIOT Act. That, of course, didn’t happen.
As a result, by operation of the precise terms of the sunset law—section 102 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (enacted in 2006 and amended periodically with new sunset dates)—FISA title V was “amended” as of June 1 to read as it had read prior to enactment of section 215 of the PATRIOT Act. And as so amended, title V now authorizes only limited business record collection—records may be sought only from common transportation carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities. None of the terms of title V that have been invoked (correctly or incorrectly) to justify the bulk telephony metadata program remain in title V (although they could have limited use if the Government seeks to use the grandfather clause of the sunset law for pending investigations).
Megan Graham’s post further demonstrates that key USA FREEDOM Act amendments, which are to be effectuated with statutory directions for “striking,” “inserting,” or “adding” words, phrases, or provisions in specific places in title V, can no longer be carried out, at least not in a way that makes sense.
Congress has six months to craft a long-term fix. The amendments in question, which are in sections 101 and 103 of the USA FREEDOM Act, do not become effective until early December, 180 days after enactment. At that time, the officials in charge of printing the U.S. Code and the companies, such as West Publishing, that publish unofficial compilations of federal laws, will either be able to produce a coherent text for an updated FISA . . . or not. Thus, for long-term purposes, the next six months offers some time to work this out legislatively.
But there is also an immediate need. As of today, the only expressly stated authority in FISA for any sort of business record collection, bulk or otherwise, except for grandfathered investigations, is the limited authority that existed prior to the PATRIOT Act, such as to obtain transportation and hotel records. That limited version of the provision sprang back to life through the sunset-mandated amendment to FISA.
Moreover, the June 1 sunset also effected a reversion by amendment to an earlier version of the “roving wiretap” provision in title I of FISA—a version that did not (and thus now does not) include such “roving wiretap” authority. (The language of the “lone wolf” terrorist sunset provision is somewhat different, as it speaks not in terms of amendment, but effectiveness.)
These problems did not go unnoticed by supporters of the USA FREEDOM Act in the Senate. As debate on the USA FREEDOM Act neared conclusion on June 2, the Act’s principal Senate sponsors, Senators Leahy and Lee, had this colloquy on the Senate floor:
Mr. LEAHY. It is unfortunate that we were unable to pass the USA FREEDOM Act before the June 1, 2015, sunset of sections 206 and 215 of the USA PATRIOT Act and the so-called ‘lone wolf’ provision of the Intelligence Reform and Terrorism Prevention Act. Senator LEE and I both sought to bring up the USA FREEDOM Act well before the sunset date to avoid just this situation. Now that the roving wiretap, business records, and so-called ‘lone wolf’ provisions have lapsed, it is important that we make clear our intent in passing the USA FREEDOM Act this week—albeit a few days after the sunset. Could the Senator comment on the intent of the Senate in passing the USA FREEDOM Act after June 1, 2015?
Mr. LEE. Although we have gone past the June 1 sunset date by a few days, our intent in passing the USA FREEDOM Act is that the expired provisions be restored in their entirety just as they were on May 31, 2015, except to the extent that they have been amended by the USA FREEDOM Act. Specifically, it is both the intent and the effect of the USA FREEDOM Act that the now-expired provisions of the Foreign Intelligence Surveillance Act, FISA, will, upon enactment of the USA FREEDOM Act, read as those provisions read on May 31, 2015, except insofar as those provisions are modified by the USA FREEDOM Act, and that they will continue in that form until December 15, 2019. Extending the effect of those provisions for 4 years is the reason section 705 is part of the act.
Senators Lee and Leahy led the effort in the Senate to enact the USA FREEDOM Act. Their words therefore merit great weight. But their theory of how section 705 of the USA FREEDOM Act would have the “effect” of undoing the June 1 sunset amendments—a theory that may have found support in this undated memo, which the Washington Post attributes to the Department of Justice—is by no means certain.
Section 705(a) of the Act amends the sunset provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 by providing a new sunset date—December 15, 2019; it simply provides that “Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (50 U.S.C. 1805 note) is amended by striking ‘June 1, 2015’ and inserting ‘December 15, 2019.'” Senator Lee’s suggestion is that this somehow cancels, or makes ineffective, the sunset that occurred on June 1, 2015. But section 705 does not say anything like that. Instead, what the provision does, in effect, is simply to provide that on the new sunset date of December 15, 2019, the business record, roving wiretap and lone wolf authorities of FISA, however they may read at that time (assuming they exist), will be amended to read as they did on October 25, 2001. Section 705 thus does not purport to describe what the law is today or to have repealed the sunset that occurred on June 1.
Section 705(a) therefore provides little basis for confidence that intelligence, and perhaps related law enforcement, actions, will be adequately grounded in incontestable law until Congress fixes the problem on a more permanent basis. Even if some courts were to accept the argument, others likely will not: While there may always be differences about what the words of a statute mean, there shouldn’t be uncertainty about what the words of the statute are. (Indeed, even the DOJ memo proposing the section 705 theory acknowledges that there would be “some litigation risk.”)
Fortunately, the Senate already has at hand an amendment, crafted by the Senate Legislative Counsel, that would do the job.
Section 508 of S. 1469, introduced by Senator Feinstein on May 23, 2015, with Senators King and Whitehouse, provides:
Section 508. Restoration of authority for access to business records, roving surveillance, and individual terrorists as agents of foreign powers
Effective on the date of the enactment of this Act, sections 101(b)(1)(C), 105(c)(2), 501, and 502 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)(C), 1805(c)(2), 1861, and 1862) are amended to read as each such section read on May 31, 2015.
If Congress were now to enact that section 508 in a technical amendments act, it would effectuate the express intent of the principal sponsors of the USA FREEDOM Act, and would also be consistent with the intent of most, although possibly not all, of those who opposed it. It would spare all who are responsible for carrying out the law a considerable amount uncertainty and avoidable argument.