Triumphs in Statutory Naming: the JUSTICE Act

Since the “Defense of Marriage Act,” Congress’ names for controversial pieces of legislation have taken a decided turn for the hypocritically Orwellian, the insulting, and even, sometimes, the grimly prescient. For example, the USA PATRIOT (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) Act, possibly the longest acronym ever, presaged a world where those who questioned the government’s newfound powers would be branded as unpatriotic traitors and, under later enactments, probably wiretapped. Huzzah for PATRIOT-ism!

That era, and its tackily draconian naming protocols, may be drawing to a close. Earlier this month, Congressman Jerry Nadler (D-NY) introduced the “Respect for Marriage Act,” which would, necessarily, repeal the “‘Defense’ of Marriage Act. And, recently, a group of center-left Democrats introduced the Judicious Use of Surveillance Tools In Counterterrorism Efforts Act. At long last, JUSTICE.

JUSTICE is not a full-fledged repealer of the PATRIOT Act. Nor should it be. But it addresses some of the Act’s most glaring flaws.

PATRIOT’s biggest shifts came in loosening the burdens government agencies must satisfy before turning to the instruments of intelligence gathering. Formerly, government agents had to prove, with just a minimum of particularity, that a surveillance target had some personal nexus with a plot that threatened national security. Post-PATRIOT, the government had only to prove that an information demand was “relevant” to an ongoing investigation. As you can imagine, the government can make the word “relevant” do a lot of work.

Under the JUSTICE Act, these burdens are mostly reset to their pre-PATRIOT definitions. Targets themselves — not their data — once more have to show a connection with a terror plot before their data becomes discoverable. This reset applies to:

  • “§ 215 orders,” which the government can use to force production of information and “gag” the order’s recipient from discussing the order. The original PATRIOT Act even prevented recipients from contacting an attorney about the orders.
  • “National Security Letters,” which permit government agents to demand transactional data, like banking records, but not the substance of the transactions.
  • “Pen Registers,” pre-FISA inventions which resemble wiretaps but collect only numbers dialed, and are thus used to construct networks of actors, rather than implicate the actors themselves.

Other elements of JUSTICE go beyond PATRIOT, and work real changes elsewhere in intelligence law. Evidence obtained by FISA is currently admissible in court against a criminal defendant; JUSTICE gives the accused access to information used against them, under the auspices of the Classified Information Protection Act. That’s one giant step away from the “star chamber” model that FISA could otherwise create.

It also cuts back on some of the more generous provisions of new-FISA. Old-FISA banned domestic wiretapping by permitting only narrowly-targeted wiretapping of specific foreign agents or conversations. But technological advances have rendered “targeting” obsolete. New-FISA solved that problem by permitting “bulk collection” of information, and replaced old-FISA’s requirement of specific targeting with a blurred standard that could have permitted, with a minimum of legal gymnastics, legal domestic wiretapping. JUSTICE terminates both. That’s probably not the right balance to strike, but it’s a better stopgap while we search for the right balance.

But JUSTICE’s biggest change, and the one most likely to have far-ranging consequences, is to the “material support” statute. That deserves more in-depth treatment, later. Suffice it to say that, as it stands, the JUSTICE Act is a well-titled, must-pass act. Tell your friends.

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3 comments

  1. Is that the same Material Support provision that’s at issue in Humanitarian Law Project v. Holder/Holder v. Humanitarian Law Project? Or is it a different Material Support law?

    Meanwhile, I’m still trying to drum up support for the SAFE Act.

  2. Totes. There’re two provisions in the same section (A&B). They’re used for different things but one affects the other.

    1. Huh. You don’t normally see Congress talking about changing the statute before SCOTUS has ruled on it.

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