Trey Gowdy Town Hall on Tuesday at Denny's On Wade Hampton

Here is a video of Congressman Gowdy before he chose to vote in favor of extending the Patriot Act on a permanent basis for four to six years. Here are the questions I would like to see people ask on Tuesday evening at Denny's:

1) Do you believe we were endowed by our creator with a right to liberty?

2) As a matter of philosophy, do you believe the liberty of the individual is above the powers of government?

3) As our elected representative to Congress, do you feel a responsibility to protect our civil liberties from an ever larger and more intrusive federal government even in situations where the Supreme Court has made a mistake?

The most disturbing aspect of the Patriot Act, and the most abused section is Title 5 that authorizes so-called "National Security Letters" (NSL). NSLs are issued so the government can gather the documents and information including employment, health, financial, and credit records. The NSL is analogous to a government subpoena, except that unlike civil subpoens which require notice to the target, the NSL is a secret subpoena sent to third parties. The third party recipients of the NSL are oftent threatened with criminal prosecution if they reveal their existance to the target. Moreover, third parties have little incentive to challenge a government NSL as the cost of doing so is prohibitive. It is much easier to just give the government the private information sought.

There is no requirement for probable cause before issuing a NSL. There also is no judicial oversight of the process. "Under five statutory provisions, the FBI can use national security letters (NSLs) to obtain – without a court order or any review by a court – records such as customer information from telephone companies, Internet service providers, financial institutions, and consumer credit companies." Testimony of Glen A. Fine, Inspector General Department of Justice (March 21, 2007). Moreover, at the FBI, the letters can be issued by any Special Agent in Charge of any field office, which means that the authority to approve a NSL is essentially local, is not reviewed at a higher level, and does not have to be directly linked to any actual terrorism case. (See link above.)

Between 2003 and 2006, the FBI issued 200,000 National Security Letters. As of 2005, the NSLs had been used to obtain more than one million personal records, including medical histories and credit reports. See 2008 Annual Report.

In 2010, the Holder Justice Department sought the records of 14,212 Americans, more than in the previous two years combined. Bloomberg News, Bin Laden's Death Won't End the Toll on American Taxpayers (May 12, 2011)

In 2010, the Chairman of the Senate Judiciary Committee, Patrick Leahy (D. Vt), stated: "For years, I have been concerned about the issuance and oversight of NSLs. We now know that the National Security Letter authority was significantly misused." (See April 12, 2010 Press Release). Yet, the Gowdy cross-examination embedded below indicates Trey is going out of his way to justify the expansive, unsupervised government snooping.

[Note: At the Denny's Town Hall meeting, Trey said that the Bill he voted for at the House Judiciary Committee did not include addressing the NSL provisions. He suggested he would be in favor of an amendment that limited the FBI authority to issue NSLs. I hope to talk to him about that issue soon and will make a report here if I get to talk to Trey.]

Because the FBI snooping is carried out without the knowledge of the target, there are few judicial opinions that address whether the power is Constitutional. However, a New York U.S. District Court found that the NSL provisions for obtaining telephone records are unconstitutional. That NSL provision, "violates the Fourth Amendment because . . . it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request." Doe v. Ashcroft, 334 F. Supp. 2d 471, 475 (S.D.N.Y. 2004).

A Republican Policy Committee report, Senate Should Reject Proposals to Weaken PATRIOT Act (Mar. 9, 2011), argues against any restrictions on FBI snooping.