While Section 215 deals with data held by citizens and noncitizens alike, Section 218 covers foreign intelligence searches targeting noncitizens. Before the Patriot Act, such searches — authorized by that secret court — were allowed only in the small category of cases whose “primary purpose” was to gather intelligence about terrorism suspects.
Section 218 lowered the bar, allowing those secret searches whenever a “significant purpose” is intelligence-gathering and whenever the evidence might be relevant to a terrorism investigation. This more relaxed standard was expanded by the 2008 FISA Amendments Act, which retroactively authorized President George W. Bush’s warrantless wiretapping program by allowing the NSA warrantless access to the data of Americans communicating with overseas “targets” as long as the conversations allegedly dealt with “foreign intelligence information.” In the PRISM surveillance program, the government insists that its algorithms can filter out the data of U.S. citizens not related to “foreign intelligence information” with 51 percent accuracy — but this assurance is not enough to protect Fourth Amendment values.
To satisfy the Constitution, Congress should amend Section 218 by restoring the requirement that the “primary purpose” of foreign intelligence surveillance searches is to gather information related to particular terrorism suspects. The law should require foreign intelligence surveillance judges to review the content of individual surveillance applications, rather than simply the targeting and minimization procedures. It should prevent the government from amassing and sharing huge databases of private information collected through programmatic surveillance, regardless of whether the targets are at home or abroad. And Congress should limit foreign intelligence surveillance to communications related to terrorism, not “foreign affairs,” broadly defined.
Sections 411 and 412, detention and deportation
The most controversial treatment of non-U.S. citizens after Sept. 11 — indefinite detention at Guantanamo — initially occurred without congressional authorization. After the Supreme Court repudiated the Bush administration’s claim that it could detain alleged enemy combatants on its own say-so, Congress authorized the detention and trial of enemy combatants in military tribunals.
Still, the Patriot Act itself explicitly expanded the government’s power over noncitizens in several ways. Section 411 allows the government to deport noncitizens who associate with terrorists, even unknowingly. And Section 412 allows the attorney general to detain foreigners if he has “reasonable grounds to believe” that they threaten national security.
This essentially imposes guilt by association, even if you aren’t aware that you’re associating with terrorists. And it threatens the liberty of both citizens and foreigners in an age when any international call or e-mail might involve someone connected to terrorism through six degrees of separation. Congress should tighten the standards for deportation, detention and surveillance so that neither citizens nor noncitizens can be targeted in any way for unknowing association of any kind.
Twelve years after the Patriot Act was passed, we’ve learned that cutting constitutional corners is both unnecessary and counterproductive. By ensuring that the courts and Congress review all requests for mass surveillance, foreign and domestic, these amendments could cure the defects of the Patriot Act while preserving its benefits. In other words, Congress can, like the blob machine, protect privacy and security at the same time.
Read more from Outlook, friend us on Facebook, and follow us on Twitter.