The American Bar Association passed resolutions on the USA PATRIOT Act that asked the U.S. Government "to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the Act before considering legislation that would extend or further expand such powers ...." and "to conduct regular and timely oversight including public hearings ... to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act ... do not violate the First, Fourth, and Fifth Amendments of the Constitution ...." They also set up a website to discuss issues in relation to the Act, and thus the Patriot Debates were born, where various people debated specific sections.
Title II
Section 203 Kate Martin argued that section 203 and 905 should be modified. She believes that While effective counterterrorism requires that agencies share relevant information, congressional efforts have uniformly failed to address the real difficulties in such sharing: How to determine what information is useful for counterterrorism; how to determine what information would be useful if shared; how to identify whom it would be useful to share it with; and how to ensure that useful and relevant information is timely recognized and acted upon. To the contrary, the legislative approach – which can fairly be summarized as share everything with everyone – can be counted on to obscure and make more difficult the real challenge of information sharing. She believes that there was no existing "wall" that separated information sharing between agencies, and believes that the problem with information sharing was that the FBI didn't know the information that was available to the CIA, and vice versa. She further criticised section 905, which required the sharing of all information that would jeopardize an ongoing law enforcement investigation or impair other significant law enforcement interests. Her criticism was that, "over the objections of civil liberties groups and some Democratic senators", the Act fails to discriminate between information gathered between terrorist and non-terrorist investigations. Therefore, she argues, no safeguards or standards are in place in the Patriot Act that apply to the use of such information.
Martin believes that the Act should be modified to include some privacy safeguards: before information is gathered she believes that the court should approve the information transfer to make sure that it is necessary for ongoing activities by the agencies involved; that information shared should be limited to information relevant to investigations into terrorism; that only those people who have access to such information should actually need it to do their jobs (currently those who are not directly related to the investigation can gain access to the information); and information gathered should be marked as confidential and measures put into place to stop the inappropriate dissemination of such information.Kate Martin, "Why Sections 203 and 905 Should be Modified" (undated). Retrieved January 2, 2005.
Viet Dinh disagreed with Martin's analysis. He gave the example of the Lackawanna Six, a group of six al Qaeda operatives who operated in Lackawanna, New York. Both the FBI and CIA investigated them when they determined that they had travelled to Afghanistan to train for terrorist activities. According to Dinh, "the two squads operated independently in the following months, often prohibited from even standing in the same room during briefings to discuss their respective cases. Thus, investigators on both sides were unable to obtain a complete picture of either the terrorist or the criminal activity." However, after section 203 came into effect, they were able to communicate together effectively and as a result, five of the six suspects pleaded guilty to providing material support to al Qaeda, and the sixth pleaded guilty to conducting transactions unlawfully with al Qaeda. He also disagrees with Martin's assertion that information should be gated through a judge before being communicated to other agencies, stating that "if a federal prosecutor learned during grand jury testimony that terrorists were planning to detonate a bomb in Manhattan in the next 30 minutes, Federal Rule of Criminal Procedure 6(e) prevented him from immediately notifying national security officials not directly participating in the investigation." Dinh believes that Congress had to balance the rights of citizens to privacy with the threat of a terrorist attack and that appropriate safeguards were implemented — whenever grand jury information is shared, the government is required to notify the supervising court and identify the departments that received it. He also explains that section 203 of the Act expressly limits disclosure to foreign intelligence information, which is limited to threats from abroad, and disputes the assertion that all information is required to be shared between agencies.Viet Dinh, Viet Dinh response (undated). Retrieved January 2, 2005.
However, Martin responded that the information sharing between agencies in regards to the Lakwana Six investigation was not impeded before the introduction of section 203, and that instead it was the agencies' misreading of FISA. She also states that his "hypothetical grand jury testimony about a bomb in New York was anticipated by the Clinton Justice Department, whose Office of Legal Counsel opined in 1993 and 1997 that under then existing law, prosecutors would be free to disclose such information to national security officials even without prior judicial approval", She further reiterated that there is no reason why modest privacy safeguards should not be put into place.Kate Martin, "Kate Martin rebuttal" (undated). Retrieved January 2, 2005.
In his final response, Dinh wrote that, Ms. Martin's response underestimates the tools necessary to prevent and detect complex webs of terrorist activity. In particular, her contention that all shared information should be first established as terrorism-related information underscores the very crux of the problem—the full relevance of information is often only apparent after information is shared between criminal and intelligence investigations. You cannot connect the dots before all the dots are even on the drawing board. He concedes that while FISA allowed for information sharing, it was such a convoluted process that "agents frequently hesitated from working openly with other government entities", and that section 203 has greatly expedited the information sharing between agencies.Viet Dinh, "An Indispensable Tool in the War on Terror" (undated). Retrieved January 2, 2005.
Section 206 James X. Dempsey argued that Section 206, which allows for roving surveillance under FISA, was reasonable considering that investigators already had the ability to perform roving surveillance in criminal cases. However, he says that "as with so many provisions of the PATRIOT Act, the concern with Section 206 is not with the authority itself [but] rather, the issue is the lack of adequate checks and balances". Dempsey believes that the section lacks two important safeguards that are present in the corresponding legislation for criminal investigations: 1) that agents actually ascertain the location of the suspect before turning on their recording devices, and 2) that "some additional changes to FISA adopted outside of the normal process in the Intelligence Authorization Act a few months after the PATRIOT Act had the probably unintended effect of seeming to authorize "John Doe" roving taps – that is, FISA orders that identify neither the target nor the location of the interception.".
He believes that an ascertainment requirement should be added to the FISA roving tap authority in to require that "in cases where the facility or place at which the surveillance is to be directed is not known at the time the order is issued, the surveillance be conducted only when the presence of the target at a particular facility or place has been ascertained by the person conducting the surveillance.", which is part of the SAFE Act.
Dempsey also believes as a result of changes made "outside the scope" of the FY 2002 intelligence authorization bill conference that changes made to , "seems to allow applications and orders that specify neither the person nor the location to be tapped" under FISA. Of this he says:
This is unprecedented, probably unintended, and probably unconstitutional. It permits the FISA court to issue a wiretap order authorizing the FBI to listen in on a telephone or e-mail conversation of a person not named in the order, at any telephone or computer the unnamed person might use.
He believes that it should be corrected to state that either the target or place be specified in the surveillance order. This would close off the loophole that neither the target or place be specified in the surveillance order, as is currently specified in FISA. Dempsey criticises as vague the approach taken by John Ashcroft, who Dempsey cites as saying, in a letter to Orrin Hatch, that a description must be added to the surveillance order. Dempsey finds this vague as the term "description" is not defined in FISA and could allow the U.S. Department of Justice to use a description of a "20- to 35-year-old Arab male", which could potentially specify thousands of U.S. citizens.
Dempsey also believes that the law should be changed so that those under surveillance via FISA should also be notified after surveillance has ceased, so that those wrongly targeted and placed under surveillance can challenge the government's actions.James X. Dempsey, "Why Section 206 Should be Modified" (undated). Retrieved January 7, 2006.
Paul Rosenzweig disagreed with Dempsey's premise that "relaxation of the particularity requirement is constitutionally suspect" and believed that it colored his argument that section 206 should be modified. Rosenzweig believes that the addition of an ascertainment requirement and the requirement that the identification of individuals should be more specific "seem unnecessary and unwise". He believes that the proposed ascertainment requirement would unnecessarily burden the ability of law enforcement and intelligence agents to perform surveillance on terrorist suspects. He believes that while opponents of section 206 focus on those who are innocent and yet who are the target of surveillance, this needs to be balanced with the view of those who are "concerned that during the delay while an ascertainment is being made, or in circumstances where an ascertainment is uncertain, vital terrorism intelligence will be lost". He believes that "while the balance struck by the ascertainment requirement may make sense in the traditional criminal context, it makes less sense in the context of terrorism investigations", arguing that there are already existing safeguards in place: an authorisation may only be done on those where there is probable cause that they are "a foreign power or an agent of a foreign power" and that there is probable cause that the facilities or places where surveillance is taking place is being used by a foreign power or an agent of a foreign power. He also says that "these requirements are subject to both administrative and judicial scrutiny prior to authorization". Rosenzweig further objects to the proposed ascertainment requirement because he believes that "it imposes a narrow law enforcement paradigm on the efforts to combat terrorism", a paradigm that he believes does not make sense in investigations of international terrorism, particularly in light of the September 11 terrorist attacks on the World Trade Center.