posted on Nov, 25 2003 @ 12:07 PM
Congress Expands FBI Spying Power
By Ryan Singel
Nov. 24, 2003
Congress approved a bill on Friday that expands the reach of the Patriot Act,
reduces oversight of the FBI and intelligence agencies and, according to
critics, shifts the balance of power away from the legislature and the courts.
A provision of an intelligence spending bill will expand the power of the FBI to
subpoena business documents and transactions from a broader range of businesses
-- everything from libraries to travel agencies to eBay -- without first seeking
approval from a judge.
Under the Patriot Act, the FBI can acquire bank records and Internet or phone
logs simply by issuing itself a so-called national security letter saying the
records are relevant to an investigation into terrorism. The FBI doesn't need to
show probable cause or consult a judge. What's more, the target institution is
issued a gag order and kept from revealing the subpoena's existence to anyone,
including the subject of the investigation.
The new provision in the spending bill redefines the meaning of "financial
institution" and "financial transaction." The wider definition explicitly
includes insurance companies, real estate agents, the U.S. Postal Service,
travel agencies, casinos, pawn shops, ISPs, car dealers and any other business
whose "cash transactions have a high degree of usefulness in criminal, tax or
Justice Department officials tried earlier this year to write a bill to expand
the Patriot Act. A draft -- dubbed Patriot II -- was leaked and caused such an
uproar that Justice officials backed down. The new provision inserts one of the
most controversial aspects of Patriot II into the spending bill.
Intelligence spending bills are considered sensitive, so they are usually
drafted in secret and approved without debate or public comment.
Chris Schroeder, a Duke law professor and former assistant attorney general in
the office of legal counsel at the Justice Department, said the re-insertion
shows that "people who want to expand the powers of the FBI didn't want to stop
after Patriot II was leaked."
"They are going to insert these provisions on a stealth basis," Schroeder said.
James X. Dempsey, executive director of the Center for Democracy and Technology,
echoed Shroeder's analysis.
"On its face, it's a cryptic and seemingly innocuous amendment," Dempsey said.
"It wasn't until after it passed both houses that we saw it. The FBI and CIA
like to try to graft things like this into intelligence bills."
House Intelligence Committee chairman Porter Goss (R-Florida) defended the new
definition, saying it was necessary to keep pace with terrorists and the
"This provision brings the definition of 'financial institution' up to date with
the reality of the financial industry," Goss said on the House floor. "This
provision will allow those tracking terrorists and spies to 'follow the money'
more effectively and thereby protect the people of the United States more
The expansion surprised many in Congress, including some members of the
intelligence committees who recently began reconsidering the scope of the
Timothy Edgar, legislative counsel for the American Civil Liberties Union,
decried the expansion of an executive power that is not subject to judicial
"The more that checks and balances against government abuse are eroded, the
greater that abuse," Edgar said. "We're going to regret these initiatives down
National security letters, or NSLs, are among the most-used antiterrorism
powers, and are among the least-known or scrutinized. The Bush administration
has pushed to expand their use. In the spring, it tried unsuccessfully to allow
the CIA and the military the right to issue such subpoenas.
The FBI says it can't say how many times it has issued itself NSLs because of
national security. A few weeks ago, civil liberties groups forced the Justice
Department to release some of those records, but Justice handed over a six-page,
Other portions of the funding bill eliminate annual reports to Congress on
several controversial matters, such as foreign companies' involvement in the
spread of weapons of mass destruction, the effectiveness of the intelligence
community and antidrug efforts.
The bill also nixes reports on how many times national security letters are used
to access individuals' credit reports.
After a joint committee reconciled the two versions of the bill, both houses had
to vote to approve the compromise version, which is usually considered a
formality. While Friday's Senate vote was a voice vote, on Thursday, 15
Republicans in the House broke ranks and voted against the entire
intelligence-funding bill in protest of the national security provision. The
bill passed by a vote of 264 to 163.
Though debate was limited, a handful of representatives, including Butch Otter
(R-Idaho), spoke out against the bill.
"In our fight for our nation to make the world a safe place, we must not turn
our backs on our own freedoms," Otter said. "Expanding the use of administrative
subpoenas and threatening our system of checks and balances is a step in the
The ACLU's Edgar said he was surprised by the extent of the Republican
defections. It shows how views in both parties have changed about granting
unchecked antiterrorism powers.
Edgar also argued the extension may anger strong interest groups -- such as
casinos, Realtors and travel agents -- who previously weren't part of the civil
"They had no idea this was coming," Edgar said. "This is going to help to
continue to expand the list of people and organizations that are asking
questions about civil liberties and Patriot Act powers."
Members of Congress who were upset by the provisions and the process that led to
their passage may hold hearings on the matter early next year.
Neither the chairman of the Senate Select Committee on Intelligence, Sen. Pat
Roberts (R-Kansas) nor the ranking minority member, Sen. Jay Rockefeller (D-West
Virginia), responded to requests for comment.
The FBI directed press calls to the Department of Justice, which didn't respond
by press time.
The Justice Department has vigorously defended its use of the Patriot Act for
both terrorist and nonterrorist investigations and set up a website to respond
to its critics.