Campaign Promises

Cabinet/Departments -> Homeland Security -> PATRIOT Act

ItemHomeland Security
The Promise: "Revise the PATRIOT avoid jeopardizing the rights and ideals of all Americans..."
When/Where: Obama Plan: "The War We Need to Win" dated 07/31/07.
Status:Under Section 215 of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001" (H.R. 3162) signed into law by President George W. Bush on 10/26/01 in reaction to the terrorist attack on the U.S. homeland on 09/11/01, the FBI could secretly conduct a physical search or wiretap of American citizens to obtain evidence of crime without proving probable cause as stipulated in the 4th Amendment of the U.S. Constitution. Another problem with Section 215 was that a Federal Bureau of Investigation (FBI) wiretapping order application could be approved "ex parte," meaning that the authorization could be granted in the absence of and without representation or notification of the party being investigated. The rationale for this provision was that involving the other party could potentially jeopardize the investigation. In 03/07, a Justice Department audit found that the FBI improperly and, in some cases, illegally used the PATRIOT Act to secretly obtain personal information about U.S. citizens.

Stating "I think it is an important tool for us to continue dealing with an ongoing terrorist threat," President Obama signed a four-year extension of the PATRIOT Act into law on 05/26/11. Section 215 was left intact, thereby authorizing the continued conduct of roving wiretaps in pursuit of terrorists.

On 06/02/15, President Obama not only revised but replaced many tenets of the PATRIOT Act by signing the "USA Freedom Act" (H.R. 2048) into law. This law amended Section 215, essentially prohibiting the National Security Agency (NSA) and the FBI from continuing the practice of collecting massive amounts of wiretapped telephone data (metadata). Instead, phone companies retain the data and the NSA and FBI can obtain information about targeted individuals from those phone companies if requested from a federal court by the Director of the FBI, a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office. That official must certify that the absence of a prohibition of disclosure could result in (1) a danger to the national security of the United States; (2) interference with a criminal, counterterrorism, or counterintelligence investigation; (3) interference with diplomatic relations; or (4) danger to the life or physical safety of any person.

This promise was fulfilled.
The Promise: "As president, Obama would update the Foreign Intelligence Surveillance Act to provide greater oversight and accountability to the congressional intelligence committees to prevent future threats to the rule of law."
When/Where: Obama Plan: "The War We Need to Win" dated 07/31/07.
Status:On 06/15/12, Congressman Lamar Smith (R-TX) introduced the "FISA Amendments Act Reauthorization Act of 2012" (H.R. 5949) to extend the FISA Amendments Act of 2008 for five years. President Obama signed this bill into law on 12/30/12.

H.R. 5949 would have been a perfect opportunity to address any loopholes in the FISA that permit government entities to monitor the communications of American citizens without warrant or any other lawful authorization. But these loopholes were not addressed in the above bill.

On 06/02/15, President Obama signed the "USA Freedom Act" (H.R. 2048) into law. Title IV of the USA Freedom Act (Foreign Intelligence Surveillance Court Reforms) directed the appointment of an "Amicus Curiae" (an impartial adviser to a court of law including the U.S. Supreme Court). An Amicus Curiae appointed under this Act serves to provide "...expertise in privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise to a court..." By signing H.R. 2048 with its Title IV as written, President Obama improved accountability and oversight of FISA-related matters.

This promise was fulfilled.
The Promise: "As president, Barack Obama would revisit the PATRIOT Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision."
When/Where: Obama Plan: "The War We Need to Win" dated 07/31/07.
Status:The three extensions to the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 signed by President Obama (02/27/10, 02/27/11, 05/26/11) kept it essentially intact. These periodic extensions were required to keep in check roving wiretaps, access to business records, and surveillance of non-American "lone wolf" suspects lacking confirmed ties to terrorist organizations.

National Security Letters (NSLs). These are administrative subpoenas used by the FBI, CIA, DIA and other intelligence agencies. They required no probable cause or judicial oversight and are used to request transactional records, phone numbers and e-mail addresses. Gag orders preventing the recipient of an NSL from disclosing the NSL's existence were ruled unconstitutional against 1st Amendment (free speech) rights in CY2008. The ruling also mandated semi-annual reporting to Congress on the use of NSLs.

Title V of the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring (USA FREEDOM) Act (H.R. 2048) signed into law by President Obama on 06/02/15, reformed provisions of the PATRIOT Act pertaining to NSLs. Specifically, the reform extended the ban on bulk collection, except by way of application based on a "specific selection term" (specifically identifies a person, account, address, or personal device in a way that limits the scope of tangible things sought consistent with the purpose for seeking the tangible things) to various provisions in the U.S. Code that would otherwise permit the FBI to issue the bulk collection of NSLs. As of end-CY2016, many of the controversial NSL provisions from the PATRIOT Act remain in place and the FBI continues to issue thousands of NSLs every year.

"Sneak and Peak" search provisions in the USA PATRIOT Act allowed intelligence agencies to delay notification of the execution of search warrants to recipients of those warrants. These "sneak and peak" provisions were struck down on 09/26/07 after an Oregon circuit court found them to be in violation of the provisions of the 4th Amendment to the U.S. Constitution which prohibits unreasonable searches. However, when the PATRIOT Act was reauthorized in 02/11, the "sneak and peak" provisions were retained but notification of the execution of search warrants was changed to occur not more than 30 days after such execution. There was no specific oversight connected to this change.

Improved oversight of NSLs pre-dated President Obama's presidency. "Sneak and peak" oversight under the USA FREEDOM Act appears limited to the original provisions of that PATRIOT Act (Section 502 of Public Law 107-56) wherein the Attorney General must report activities under the Act to the Senate and House Select Committees on Intelligence and Judiciary Committees on a semiannual basis.

As of end-CY2016, there is no specific "material witness" provision in the USA FREEDOM Act, therefore no "oversight" of such a provision is addressed therein.

No NSL or "sneak and peak" oversight improvements can be attributed directly to President Obama. "Material witness provisions" date back to the First Judiciary Act of 1789, as amended by the Bail Reform Act of 1984. Consequently "material witness provisions" were not included in the original PATRIOT Act and therefore did not require the related PATRIOT Act oversight improvements promised by President Obama.

This promise was not fulfilled.