3 Provisions of the PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) are set to expire at the end of the year.
WASHINGTON — As Congress prepares to consider extending crucial provisions of the USA Patriot Act, civil liberties groups and some Democratic lawmakers are gearing up to press for sweeping changes to surveillance laws.
Both the House and the Senate are set to hold their first committee hearings this week on whether to reauthorize three sections of the Patriot Act that expire at the end of this year. The provisions expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation.
Is this really an “expansion” of power? Or a matter of updating existing powers in order for the F.B.I. to effectively do its job of protecting American lives in wake of 21st century technological advancements?
Laying down a marker ahead of those hearings, a group of senators who support greater privacy protections filed a bill on Thursday that would impose new safeguards on the Patriot Act while tightening restrictions on other surveillance policies. The measure is co-sponsored by nine Democrats and an independent.
The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE- ain’t that cute?) Act is being introduced by U.S. Senators Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Ron Wyden (D-OR), Daniel Akaka (D-HI) and Bernie Sanders (I-VT- who might as well carry a “D” by his name).
“Every single member of Congress wants to give our law enforcement and intelligence officials the tools they need to keep Americans safe,” Mr. Feingold said in a statement when filing the bill. “But with the Patriot Act up for reauthorization, we should take this opportunity to fix the flaws in our surveillance laws once and for all.”
Really?! Feingold (and every single member of Congress) wants to give our FBI and CIA the tools they need to keep Americans safe? Is that what he wanted in Oct. 2001 when he alone opposed the Patriot Act? If he had a chance to vote against the entire Patriot Act today, would he do so? 8 years following the events of 9/11, and we have not experienced another such terror attack. How has the Patriot Act not contributed to that success?
One of the witnesses Democrats have invited to testify at both hearings is Suzanne E. Spaulding, who has worked for lawmakers of both parties as a former top staffer on the House and Senate Intelligence committees.
I love when it’s always pointed out that she’s “worked for lawmakers of both parties”, as if that gives her credentials of being down the middle/bipartisan. But on this issue, she has always aligned herself against the Bush Administration on the Patriot Act, FISA, NSA surveillance program.
Mrs. Spaulding said she would urge Congress to tighten restrictions on when the F.B.I. could use the Patriot Act powers.
The rapid build-up of domestic intelligence authorities after the Sept. 11 attacks, she said, had overlooked “important safeguards,” which has resulted “in a greater likelihood at a minimum of the government mistakenly intruding into the privacy of innocent Americans, and at worst having a greater capability of abusing these authorities.”
Still, she acknowledged, the public record contains scant evidence that the F.B.I. has abused its powers under the three expiring Patriot Act sections.
Yet Spaulding and others of her mindset continue to fear-monger a characterization of “abuses”, “spying on AMERICANS (not terrorists)”, “civil rights intrusion”. That’s how they define this.
Republicans invited Kenneth L. Wainstein, a former assistant attorney general for national security for the Bush administration, to testify at both Patriot Act hearings.
“We have to be careful not to limit these tools to the point that they are no longer useful in fast-moving threat investigations,” Mr. Wainstein said. “There is an important place for oversight of national security tools, and that oversight is being exercised by Congress and by the federal judges on the Foreign Intelligence Surveillance Court.”
The first such provision allows investigators to get “roving wiretap” court orders authorizing them to follow a target who switches phone numbers or phone companies, rather than having to apply for a new warrant each time.
From 2004 to 2009, the Federal Bureau of Investigation applied for such an order about 140 times, Robert S. Mueller, the F.B.I. director, said at a Senate Judiciary Committee hearing last week.
The second such provision allows the F.B.I. to get a court order to seize “any tangible things” deemed relevant to a terrorism investigation — like a business’s customer records, a diary or a computer.
From 2004 to 2009, the bureau used that authority more than 250 times, Mr. Mueller said.
The final provision set to expire is called the “lone wolf” provision. It allows the F.B.I. to get a court order to wiretap a terrorism suspect who is not connected to any foreign terrorist group or foreign government.
Mr. Mueller said this authority had never been used, but the bureau still wanted Congress to extend it.
I wonder if Dennis Kucinich sees that last fact as a reason for scrapping it. 5 years after the enactment of the Patriot Act, the number of searches conducted at libraries under the business records provision was just one, prompting Kucinich to say: “If they haven’t used it, they shouldn’t have any problems with our efforts to get it repealed.”
As Ron Kessler points out, “That was like saying that because a policeman had never used his gun, it should be taken away.” [pg 65, The Terrorist Watch]
Kucinich, btw, was on a FOX morning news show this weekend, crying foul over the timing of arrests made last week to foil a terror plot in NYC, in close proximity of the upcoming debate on the Patriot Act. That accusation is a bit akin to Nancy Pelosi’s smear of the CIA. However, who would engage in political timing and advocacy? Why, the national security-averse NYTimes in 2005:
Before yesterday’s vote, opponents of the legislation rallied around a front page article in Thursday’s New York Times that reported Mr. Bush had secretly lifted certain limits on spying inside the United States. After more than a year holding the story, the paper decided to run it on the day of the Patriot Act vote.
The rhetoric of the Senators who are introducing the JUSTICE Act is one of striking balance between giving law enforcement and intell officials the tools they need on the one hand; while protecting American civil liberties on the other. But are Americans really in danger of being targeted for civil rights abuses and violations under the current Patriot Act?
Many of the proposals under discussion involve small wording shifts whose impact can be difficult to understand, in part because the statutes are extremely technical and some govern technology that is classified.
But in general, civil libertarians and some Democrats have called for changes that would require stronger evidence of meaningful links between a terrorism suspect and the person whom investigators are targeting.
In the same way, some are proposing to use any Patriot Act extension bill to tighten when the F.B.I. may use “national security letters” — administrative subpoenas that allow counterterrorism agents to seize business records without obtaining permission from a judge. Agents use the device tens of thousands of times each year.
The Patriot Act section that expanded the F.B.I.’s power to issue those letters is not expiring, but they have become particularly controversial because the Justice Department’s inspector general issued two reports finding that F.B.I. agents frequently misused the device to obtain bank, credit card and telephone records.
National security letters are similar to grand jury subpoenas, issued in international terrorism and espionage investigations.
As it turns out, the actual number of national security letters issued by the FBI each year averages around 50,000. While that number may sound like a lot, an investigation of one suspected terrorist may entail issuance of hundreds of national security letters to track down data from each bank account, credit card, cell phone, telephone, e-mail, and Internet account he may have used over time.
In a later audit, Justice Department Inspector General Glenn A. Fine found minor deficiencies associated with 22 of the 293 national security letters he examined from 2003 to 2005. In some cases, the letters were issued after the authorized investigation period, or an agent had accidentally transposed the digits in a telephone number of a person under investigation.
In about half the cases, the problems were not the fault of the FBI: According to Fine’s report, recipients of the letters sometimes turned over more information than requested or provided information about the wrong phone number. These problems never should have been lumped in with FBI violations.
Mueller brought that up with Fine, who insisted he was right to do so.
Mueller says the reason the FBI did not keep proper track of requests for national security letters is that no separate system had been set up to keep track of them.
By the time the report came out, Mueller had already taken twelve steps to correct the problems,
Fine specifically found that the FBI had not intentionally violated any rules. He determined that, with the exception of situations where the recipient made an error, the FBI in most cases had obtained information to which it was, in fact, entitled. He noted the tremendous workload of FBI agents trying to stop the next attack. And he concluded that NSLs have contributed significantly to the FBI’s counterterrorism efforts.
The news accounts either ignored or downplayed these findings. Instead, they played up the story as a massive intrusion into people’s personal lives, suggesting NSLs had something to do with monitoring calls rather than simply obtaining subscriber information associated with telephone numbers and e-mail addresses or obtaining financial records.
The F.B.I and the C.I.A. are not interested in “spying” upon ordinary Americans. They are interested in being able to do their jobs and to do them well, which involves protecting their loved ones and ordinary Americans.
Whose rights were being violated more, those whose phones were tapped by court order or those who died in the 9/11 attacks?
– Ron Kessler, The Terrorist Watch, pg 64
The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring the government has the powers it needs to fight terrorism and collect intelligence.
Title I – Reasonable Safeguards to Protect the Privacy of Americans’ Records
Sections 101-106 – National Security Letters
The bill rewrites the National Security Letter (NSL) statutes to ensure the FBI can obtain basic information without a court order, but also adds reasonable safeguards to ensure NSLs are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of NSLs and associated gag orders.
Section 107 – Section 215 Orders
The bill would reauthorize the use of Section 215 business records orders under FISA, but with additional checks and balances to ensure these orders are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of Section 215 orders and associated gag orders.
Title II – Reasonable Safeguards to Protect the Privacy of Americans’ Homes
Section 201 – “Sneak & Peek” Searches
The bill would retain the Patriot Act’s authorization of “sneak and peek” criminal searches but eliminate the overbroad catch-all provision that allows these secret searches in virtually any criminal case. It would shorten the presumptive time limits for notification, and create a statutory exclusionary rule.
Title III – Reasonable Safeguards to Protect the Privacy of Americans’ Communications
Section 301 – FISA Roving Wiretaps
The bill would reauthorize roving FISA wiretaps, but eliminate the possibility of “John Doe” roving wiretaps that identify neither the person nor the phone to be wiretapped. It would require agents to ascertain the presence of the target of a roving wiretap before beginning surveillance.
Section 302 – Pen Registers and Trap and Trace Devices
The bill would retain the Patriot Act’s expansion of the FISA and criminal pen/trap authorities to cover electronic communications, but would allow pen/traps to be used only to obtain information about people who have some connection to terrorism or espionage. It would impose additional procedural safeguards to serve as a check on these authorities.
Section 303 – Telecommunications Immunity
The bill would repeal the retroactive immunity provision in the FISA Amendments Act.
Section 304 – Bulk Collection
The bill retains the new warrantless authorities in the FISA Amendments Act but would prevent the government from using that law to conduct “bulk collection” of the contents of communications, including all communications between the United States and the rest of the world.
Section 305 – Reverse Targeting
The bill would ensure that the overseas warrantless collection authorities of the FISA Amendments Act are not used as a pretext to target Americans in the U.S.
Section 306 – Use of Unlawfully Obtained Information
The bill would limit the government’s use of information about Americans obtained under FISA Amendments Act procedures that the FISA Court later determines to be unlawful, while giving the court flexibility to allow such information to be used in appropriate cases.
Section 307 – Protections for International Communications of Americans
The bill would amend the FISA Amendments Act to create safeguards for communications not related to terrorism that the government knows have one end in the United States.
Section 308 – Computer Trespass
The bill would guard against abuse of a warrantless surveillance authority in the Patriot Act that allows computer owners who are subject to denial of service attacks or other episodes of hacking to give the government permission to monitor trespassers on their systems.
Title IV – Improvements to Further Congressional and Judicial Oversight
Section 401 – FISA Public Reporting
The bill would require limited additional public reporting on the use of FISA.
Section 402 – Use of FISA Evidence
The bill would apply the Classified Information Procedures Act to the use of FISA evidence in criminal cases, and allow the use of protective orders and other security measures in civil cases, to ensure that courts have discretion to allow litigants access to information where appropriate while still protecting sensitive information.
Section 403 – Nationwide Court Orders
The bill would permit a recipient of a nationwide court order to challenge it either in the district where it was issued or in the district where the recipient is located.
Title V – Improvements to Further Effective, Focused Investigations
Section 501 – Domestic Terrorism
The Patriot Act’s overbroad definition of domestic terrorism could cover acts of civil disobedience by political organizations. The bill would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism.
Section 502 – Material Support
The bill would amend the overly broad criminal definition of material support for terrorism by specifying that a person must know or intend the support provided will be used for terrorist activity.