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Welcome to "Ask the White House" -- an online interactive forum where you can submit questions to Administration officials and friends of the White House. Visit the "Ask the White House" archives to read other discussions with White House officials.

Ken Wainstein
United States Attorney, District of Columbia

January 4, 2006

Ken Wainstein
My name is Ken Wainstein, and I'm the United States Attorney in the District of Columbia. I have served in law enforcement almost my whole career, both as a federal prosecutor and as an official at the Department of Justice and at the Federal Bureau of Investigation. In these positions, I have seen first-hand the importance of the USA PATRIOT Act authorities to the agents, prosecutors and other officials who are on the front lines of our campaign against crime and terrorism.

During this past year, I have also participated in the national dialogue about the USA PATRIOT Act and its authorities, and I have appreciated the honest concerns expressed by so many of our fellow citizens, both those supporting and those questioning certain of those provisions. That dialogue has succeeded in producing a piece of legislation that will both reauthorize and improve upon the vitally important authorities that were provided by the USA PATRIOT Act. I join the President in urging that this legislation be passed as soon as possible, so that my colleagues and I can continue to use those authorities in our effort to protect the country against terrorists and criminals.

I appreciate this opportunity to communicate with you on this important topic. It is my hope that this online chat will both explain the reasons for my position and answer any questions that you may have. I trust that you will find the following answers helpful as you consider the debate surrounding reauthorization of the USA PATRIOT Act.

Jeremy, from Copperas Cove, TX writes:
The biggest issue with the Patriot Act seems to be whether it should be temporary or permanent--why? No abuses were reported, and no one used the grievance claim section, so what's the problem?

Ken Wainstein
Jeremy, thanks for your questions. The White House and the Department of Justice strongly support permanent reauthorization of each of the expiring provisions of the USA PATRIOT Act. Overwhelming majorities in the House and Senate passed the Act shortly after the terrorist attacks of September 11, 2001, providing important authorities to investigators in their efforts to protect Americans from another terrorist attack or other serious threats. Sixteen provisions in that Act, including provisions instrumental in breaking down the so-called “wall” between law enforcement and national security investigators, are set to expire on February 3, 2006. The House has passed by a wide bipartisan margin a strong reauthorization bill that would make 14 of the 16 expiring provisions permanent. The President supports this bill, which also adds more than 30 new civil liberties safeguards. Making these tools permanent is important to protecting the national security: Putting aside the substantial resources that must be devoted to legislative reauthorization proceedings each time a sunset looms, it is vital that our nation’s investigators have stable rules to govern their activities. Stable rules empower the government to put into place the institutions and processes necessary to combat terrorism and other threats effectively, without the fear that those institutions and processes must be discarded in the near future.

You are also correct that there have been no verified abuses of the Act. In 2005 alone, Congress held 23 hearings with over 60 witnesses, received answers to hundreds of written questions, and held dozens of classified and unclassified briefings, and there have been seven civil liberties reports issued since 2001 by the DOJ Inspector General and countless forums. After all this, it is clear that the USA PATRIOT Act is a vital tool and that there has been not a single verified abuse of its provisions.

Michael, from Powell, TN writes:
I can understand the need for wiretapping of suspected terrorists to help avoid more attacks. Does all of the Patriot Act need to be renewed?

Ken Wainstein
Good question, Michael. Sixteen provisions are currently set to expire, and the White House and Department of Justice support reauthorization of each of these provisions. To understand why, it’s important to understand that the USA PATRIOT Act is much more than the few provisions that have attracted so much attention. It is a collection of common-sense improvements to the authorities of our national security investigators.

For starters, the Act allows terrorism and espionage investigators to use the tools that have long been available to investigate organized crime and drug trafficking. For example, before the USA PATRIOT Act, courts could permit law enforcement to conduct electronic surveillance to investigate many ordinary, non-terrorism crimes, such as drug crimes, mail fraud, and passport fraud, and some — but not all — of the crimes that terrorists often commit. The Act enabled investigators to gather information when looking into the full range of terrorism-related crimes, including terrorism financing. The Act also equips federal agents with tools necessary to investigate sophisticated terrorists and spies who are trained to evade detection. For example, law enforcement investigators have long been able to use "roving wiretaps" — which apply to a particular suspect, not a particular phone or communications device — to investigate ordinary crimes, including drug offenses and racketeering. Because terrorists and spies are often trained to thwart surveillance by repeatedly changing phones and service providers, the Act authorized agents to seek court permission to use these “roving wiretaps” in intelligence investigations.

The USA PATRIOT Act also empowered the government to better “connect the dots,” because it facilitated information sharing and cooperation among government agencies. The Act helped bring down major legal barriers that prevented the law enforcement, intelligence, and national defense communities from coordinating their work to protect the American people.

Other provisions of the Act increased the penalties for those who commit terrorist crimes. The Act imposed tough new penalties on those who commit and support terrorist operations, both at home and abroad.

Most of the provisions of the Act are not set to expire, but as I think this discussion demonstrates, the sixteen that are set to expire include some of the most important.

Joel, from Superior, WI writes:
Mr. Wainstein, What will the effect on the War on Terror be if the US Patriot Act is not renewed?

Ken Wainstein
That’s an important question. The experience of the past four years demonstrates that the USA PATRIOT Act has been critical in protecting Americans from another terrorist attack. The Act provided national security investigators with tools available to criminal investigators, updated authorities to account for new technologies, and, critically, helped break down the “wall” between our law enforcement and national security personnel. It was this legal and bureaucratic “wall” that prevented one team of FBI agents from talking to another team of FBI agents, hindering our ability to “connect the dots” and protect Americans. If the USA PATRIOT Act is allowed to expire, we will to some extent return to a pre-9/11 state of affairs, where terrorists and spies can use technology against us and our criminal and intelligence communities’ ability to share information with each other is in question. We will also cast into doubt the viability of numerous joint intelligence/law enforcement initiatives and task forces that have become critical features of our counterterrorism efforts since the end of the wall permitted such coordination.

Jinesh, from Princeton, NJ writes:
Mr. Wainstein, several provisions of the Patriot Act violate America'a basic Constitutional Rights, the Bill of Rights protects all Americans from unreasonable searches and seizures, yet the Patriot Act authorizes sneak-and-peek searches without probable cause, along with other violations of Civil Rights, how does the Supreme Court justify this as Constitutional?

Ken Wainstein
Jinesh, the Administration and the Justice Department are committed to protecting both Americans and the civil liberties that we cherish. The USA PATRIOT Act provided national security and law enforcement personnel with new and updated tools and accompanied these tools with significant safeguards. The vast majority of those tools are accompanied by congressional oversight, judicial involvement, and internal procedures designed to safeguard our liberties and prevent abuse. My colleagues and I have taken an oath to defend and preserve that Constitution, and we believe that each of the provisions of the Act is consistent with that oath.

You mention delayed notice — or “sneak-and-peek” — search warrants. These warrants are a longstanding tool available for decades in criminal investigations. The USA PATRIOT Act did not create this tool; it merely provided a uniform nationwide standard for authorizing them. As with all criminal search warrants, a federal judge can issue a delayed-notice search warrant only if the government makes the traditional showing of probable cause — that is, probable cause to believe that a crime has been or will be committed and that the property sought or seized constitutes evidence of that criminal offense.

A delayed-notice warrant differs from an ordinary search warrant only in that the judge authorizes the officers executing the warrant to wait for a limited period before notifying the subject of the search, because immediate notice would cause one of several harms specified by law. In every case where the government executes a criminal search warrant — including those issued pursuant to the delayed-notification provision of the USA PATRIOT Act — the subject is told of the search. Delayed-notice search warrants are an invaluable in certain rare circumstances: The Department used delayed notice in less than 0.2% — that is, less than 1 in 500 — of all warrants authorized in the period of time between the enactment of the USA PATRIOT Act and January 31, 2005. There have been no verified abuses of this authority.

Delayed-notice warrants play a critical role in all types of investigations. Imagine a drug case where we receive reliable information that a shipment of narcotics from overseas has been stored in a particular warehouse and that members of the distribution network are scheduled to pick up the narcotics at some time in the near future. It is quite conceivable that agents will want to obtain a warrant authorizing them to search the warehouse and seize the drugs without notifying the warehouse owner for fear that he or she will warn the drug distributors and thereby foil the agents’ plans to arrest them when they arrive to pick up the narcotics. Similarly, one can imagine a terrorism case where agents are conducting surveillance of a suspect and have probable cause to believe that the suspect is planning a terrorist bombing and is storing bomb-making equipment in his basement. Under those circumstances, the agents may well want to obtain a search warrant to ascertain the existence of the equipment and learn more about the dimensions of the plot, but to do so without notifying the suspect so that they can continue to surveil him and identify any accomplices. These examples demonstrate the operational importance of the courts’ authority to permit the government to give delayed notice in appropriate circumstances.

Kate, from South Carolina writes:
Could you please explain how the Patriot Act protects our civil liberties? I think a lot of people misunderstand what is actually in the Patriot Act. Thanks.

Ken Wainstein
Good point. I agree that much of the criticism of the USA PATRIOT Act is based on misunderstandings and misinformation. The USA PATRIOT Act provided investigators with critical tools to protect Americans and accompanied those tools with significant safeguards. To take an example, one provision that has been widely criticized is the so-called “roving” wiretap that allows a national security investigator to continue investigating a particular terrorist or spy even when he tries to evade surveillance by switching from, say, Verizon to AOL. In order to obtain a roving wiretap, investigators have to go through a rigorous internal process that involves both the FBI and lawyers in the Department of Justice; must secure a federal judge’s approval both for the initial electronic surveillance of the terrorist or spy and for the order allowing the surveillance to follow the terrorist from phone to phone; and must continuously update the judge on the electronic surveillance. In addition, the Department must report to Congress extensively on our use of this authority through semi-annual reports, oversight hearings, briefings, and audits.

Extensive oversight of the use of USA PATRIOT Act authorities, including seven reports by the Department of Justice Inspector General, has demonstrated that there have been no abuses of the Act. Even so, the reauthorization bill that the House has passed and the President supports — but a minority of Senators has blocked — would add more than 30 new safeguards. These safeguards include more judicial review and oversight, more reporting to Congress, and two additional audits by the Department of Justice Inspector General.

Daniel, from Great Barrington, MA writes:
Why do you think some members of Congress oppose the current reauthorization of the Patriot Act and want to add more civil liberties protections? Thank you for your service.

Ken Wainstein
The majority of Americans, a wide bipartisan majority of the House, and a bipartisan majority of Senators support reauthorization of the USA PATRIOT Act. The House has passed, and the President supports, a reauthorization bill that would make 14 of the 16 expiring provisions permanent and add dozens of new civil liberties protections. Unfortunately, a minority of Senators has blocked a vote on this bill. Although these Senators cite civil liberties protections as their concern, they voted to reauthorize the expiring provisions as they are, rather than allowing a vote on the reauthorization bill, which adds more than 30 new safeguards to USA PATRIOT Act provisions.

Jeff, from New Jersey writes:
While I would agree that aspects of The Patriot Act do help law enforcement, many people, myself included, worry that provisions in this act could be used to invade the privacy of law-abiding citizens. Specifically, what checks and balances are in place to prevent this from happening?

Ken Wainstein
That’s a fair question, Jeff. The provisions of the USA PATRIOT Act are accompanied by numerous safeguards against civil liberties abuses. First, judicial review is a critical part of national security investigations. For example, to obtain an order for production of business records, investigators must first go to a federal judge. The judge, not the FBI, issues the order. Similarly, only a federal judge can authorize a “roving” wiretap order, which targets a particular individual rather than a particular phone, and investigators must keep that judge informed on an ongoing basis. Although people have raised concerns about delayed notice search warrants (so-called “sneak-and-peek” warrants), those, too, are only available if a federal judge is persuaded that there is probable cause to issue the warrant and that there is good reason to delay notice. Another check on potential abuse is Congressional oversight. The USA PATRIOT Act contained numerous reporting requirements, and the Department of Justice must submit comprehensive reports to Congress twice yearly. In addition, there are binding procedures in place within the Department of Justice that guide both our investigators and our lawyers. The Attorney General has issued detailed guidelines on what constitutes a national security investigation and how those investigations must be conducted. The USA PATRIOT Act also requires reporting by the Department’s Inspector General, and gives people the ability to sue the United States for money if their information is improperly shared.

In addition to these safeguards that are already in place, the reauthorization bill passed by House and supported by the President — but blocked by a minority of Senators — would add new safeguards. For example, National Security Letters have been the subject of a lot of public concern. The NSL statutes allow investigators to request (not order) specific types of information from limited categories of third parties such as communications providers. These authorities predated the USA PATRIOT Act, and section 505 of that Act, which modified the authorities, is not set to expire. But the reauthorization bill nonetheless would significantly amend these authorities to, among other things, make it explicit that these letters would no longer automatically be accompanied by a nondisclosure order, that recipients could challenge an NSL and any accompanying nondisclosure requirement in court, and that recipients could tell an attorney about the NSL in order to obtain legal advice.

Similarly, the reauthorization bill would put new safeguards on section 215 (the popularly misnamed “library records” provision), including clarifying the appropriate standard for obtaining such an order, clarifying that a recipient may tell a lawyer and may challenge the order in court, and requiring high-level approval before an application is made to obtain certain sensitive records, such as bookstore or tax return records. The reauthorization bill would also require the Attorney General to develop and implement “minimization” procedures limiting the retention and dissemination of information obtained through section 215 orders.

In short, the USA PATRIOT Act contains many safeguards, and the reauthorization bill pending in Congress would add many more.

Ken Wainstein
Thank you for participating in today's discussion about the legislation reauthorizing the Patriot Act and its role in our efforts against crime and terrorism. It is an honor to serve you and the President as a federal prosecutor, and to play a small part in the great democratic process that produces such well-considered legislation.

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