The Washington Independent is reporting that Senator Al Franken read the text of the Fourth Amendment to Assistant Attorney General (National Security Division) David Kris. Apparently, at some point of the proceedings, Mr. Kris muttered that the line of questioning was “surreal.”
Video of the proceedings can be found on the Senate Judiciary’s webpage, here, and Senator Franken’s questioning begins at around 94:50. He starts by conceding the utility of the roving wiretap (because terrorists might use different phones), but alleges that the USA PATRIOT Act does not require a LEO (law enforcement officer) to identify the individual, nor the phone, nor the computer. Mr. Kris responds that he believes that the law requires provision of the identity, if known, or a description of the target. To which Senator Franken reiterated that it does not require the actual identity of the individual. And Mr. Kris agreed with that.
This led Franken to read the Fourth Amendment to Mr. Kris. emphasizing the clause which states “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added) Franken asked if Mr. Kris thought that roving wiretaps (under the USA PATRIOT Act) were consistent with the Constitution. To which Mr. Kris responded that he thinks it is, and he would defer to the other branch of the government, the judiciary. Mr. Franken responded “I know what they are,” and that’s when Mr. Kris wiped his forehead and said “This is surreal.” Mr. Kris then provided a small exigesis on how courts have, in the past, essentially ignored the Constitution, allowing warrantless wiretaps prior to FISA. So, in Mr. Kris’s estimation, FISA and the roving wiretaps actually require more judicial oversight than the Courts were requiring in the first place.
Mr. Franken then turned his attention to Glenn Fine, the Inspector General of the Department of Justice. Franken brought up the subject of NSLs (National Security Letters), pointing out that while warrants require court approval, NSLs don’t. He wonders what will keep the FBI from always using NSLs, and wants to know whether NSLs are being used more often than other methods which require higher thresholds. Mr. Fine responds that the NSLs are only allowed for certain types of records. To Mr. Franken’s credit, he noticed that that wasn’t much of an answer, and asked, again, whether they are using the NSLs to get around other structures. Mr. Fine paused, and then said that he doesn’t think that’s what’s happening. Then Mr. Franken asked whether they have ever been used to get around more stringent requirements. Mr. Fine, as he has done before, said that he thinks that the FBI has improperly used them, but rather than anything nefarious, it was due to sloppiness, lack of training, and lack of supervision. Mr. Franken then noted he was simply concerned because if they have been abused before, they may be abused in the future.
In a way, I can understand Mr. Kris’s feeling that this is surreal, because roving wiretaps and the like have, unfortunately, been around a long time. It is a popular misconception that the USA PATRIOT Act created them. In actuality, roving wiretaps were created in 1986, and expanded later in the 1990s, and then expanded again under the USA PATRIOT Act. So, while Mr. Franken’s line of questioning was indeed necessary and good to see, it’s a little bit like a farmhand getting yelled at by the farmer because all the chickens ran away, when the farmer was the one who told the farmhand to leave the coop unlocked and open. Not to totally defend the DOJ, which has committed incredibly egregious violations of the law in the name of “National Security,” but I can see why he might feel a little flummoxed.
In any event, good on Senator Franken for at least giving it a shot.
Oh, and just as an aside, when the roving wiretaps were expanded in the 1990s, guess who was the defender of such? Then-Deputy and now-current Attorney General of the United States, Eric Holder. See Eric H. Holder, “Only Necessary Wiretaps: Letters to the Editor,” Wash. Post, Fed. 4, 1999 at A26.