Homeland Security

One of the biggest hot button issues to come up so far this year was a vote to extend two provisions of the PATRIOT Act and one provision of the Intelligence Reform and Terrorism Prevention Act (IRTPA) long enough for the proper committees to hold open hearings on these issues. To provide a full explanation of this issue, I have posted a letter I wrote on this below as well as a Fact vs. Fiction section. If you have any additional questions on this, please do not hesitate to call my office.

Dear Friends,

Thank you for contacting me regarding your concerns about HR. 514. It's refreshing to know that so many folks back home are watching what Congress does and are holding us accountable.

Like many people, I am generally concerned about the PATRIOT Act and its impact on our individual liberties. I believe that our government must strike a careful balance between protecting our safety and safeguarding our Constitutional rights. But that balance is the key: in seeking the former, the government must not trample on the latter. As Benjamin Franklin said, "Those that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Against that background, it is very important to let everyone know that the vote on HR 514 was absolutely NOT a vote to fully renew the PATRIOT Act, or make it permanent. The purpose of the vote was, specifically, to extended two provisions of the PATRIOT Act and one provision of the Intelligence Reform and Terrorism Prevention Act (IRTPA) long enough for the proper committees to hold open hearings on these issues.

The extended portion of the IRTPA was the "lone-wolf" provision (Section 6001), which gives law enforcement the same ability to investigate non-citizens who are acting on their own as it has when investigating members of specific terror organizations. This gives law enforcement important tools to deal with rogue terrorists who aren't necessarily linked to organizations, such as Al Qaeda. A key for me here is that this section affects only non-citizens. Some folks believe that non-citizens are entitled to full Constitutional protections; I've never seen things that way.

As for the PATRIOT Act, the bill deals with only two sections: 206 and 215.

Section 215 (sometimes called the "Library Rule") --- as originally drafted --- did have Constitutional faults. However, in 2005 section 215 was fairly drastically changed to include several Constitutional protections. The changes (a) required that investigators show "relevancy" of the request for records to an ongoing terrorism investigation, (b) clarified that judges had the authority to modify orders, (c) clarified that the recipient of a section 215 order had the right to consult with an attorney and challenge any order they believe is unwarranted, and (d) provided for a judicial review panel to review challenges to the legality of a 215 order. Furthermore, the Justice Department must now report to Congress anytime a 215 order is issued.

Section 206 deals with "roving surveillance." Before the PATRIOT Act, when dealing with suspected terrorists, law enforcement officials were forced to rely on wiretapping rules crafted decades ago: specifically, before cell phones. The idea behind this section was to bring the law up to speed with the technology. This section simply allows the Department of Justice to use the same tools available to combat organized crime and drug dealers on terrorists.

That's it. As you can see, the actual bill may not match up with what you have seen on the news or, more likely, read on the internet. For example, several folks have contacted my office regarding non-disclosed search and seizure provisions, requests for websites that somebody may have visited on their personal computers, and issues related to "national security letters." It is important to understand that the vote for HR 514, the bill that was before Congress, did not include or authorize any of these provisions.

I've heard a lot of things about the Patriot Act that I don't like. At the same time, I've also learned that at least some of that information – especially many of the stories circulating on the internet – is not accurate.

I think that people expect me to get the best information I can before I vote. And toward that end, it is important to note that Congress will be conducting hearings on the Patriot Act and alleged Constitutional abuses using it, during this year. The extension to the laws I have discussed here only lasts until December. If I see any indication that these sections are being abused, or that the bill as a whole is contributing to the violation of our Constitutional rights, then I will have no trouble not only voting against these provisions, but against the entire PATRIOT Act. But that was not what the vote this week was about.

Thank you again for contacting me with your concerns, and please feel free to do so in the future on issues of importance to you. I look forward to keeping track of this year's hearings on the PATRIOT Act so that I can determine for myself what the truth is about what it does, and doesn't do, to our individual freedom and our national security.

It is an honor to serve you.

All the best,

Mick Mulvaney

Fact vs. Fiction:

Dispelling the Myths: PATRIOT Act Authorities and Civil Liberties Protections

Section 215 Business Records

• Section 215 has more strict requirements than grand jury subpoenas used in criminal investigations.
• Business Records can ONLY be obtained under Section 215 by an order issued by a federal judge of the FISA Court.
• A request for business records under Section 215 is NOT a search under the 4th Amendment.
• Section 215 does NOT authorize the warrantless search of a target's home or other place and a 215 application to seek this authority would be summarily rejected by the FISA Court.
• The FISA Court is comprised of federal trial judges who are experienced in criminal procedure and constitutional protections and who, in addition to their district court duties, also serve on the FISC.
• Section 215 CANNOT be used to acquire records of U.S. persons based solely upon 1st Amendment protected activity, such as political speech.
• The 2005 reauthorization also provided procedures for recipients of 215 orders to seek judicial review of orders compelling the production of business records.

Section 206 Roving Wiretaps

• Roving wiretaps are nothing new. Domestic law enforcement agencies have had roving authority for criminal investigations since 1986.
• These wiretaps simply allow investigators to surveil a target, regardless of what phone he/she uses. With today's disposable cell phones, making agents run back to a FISA judge every time a suspect changes phones risks losing track of the target.
• A FISA Court judge is the ONLY one who can authorize a roving wiretap.
• FISA Judges supervise roving wiretaps as they progress to make sure the authority is being used correctly.
• The government must notify the FISA judge when they begin tracking a new phone or computer.
• As with any wiretap, the government must "minimize" roving wiretaps. This requires the government to turn the wiretap off when conversations not related to the investigation are taking place or a person who is not a target of the investigation is using the phone or computer. This has been the law for many decades.

Lone Wolf Definition

• Al Qaeda has changed its tactics, looking to encourage terrorists who are not "members" of Al Qaeda.
• Terrorists not affiliated with a known terrorist organization are "lone wolves." They share the jihadist goals of al Qaeda but are not following an operational plan handed down by a terrorist group.
• Lone wolf authority CANNOT be used against a U.S. Citizen or legal permanent resident.