Friday, November 06, 2009

Is a Re-Do of Post-9/11 Paranoia the Best We Can Do?

By William Fisher

The USA Patriot Act, rushed into law by a panicky U.S. Congress in the aftermath of the terrorist attacks of September 11, 2001, gave law enforcement sweeping new powers, including broad surveillance powers to spy on innocent Americans. But it also stipulated that three of its more controversial provisions should expire at the end of next month unless reapproved by lawmakers.

And it appears that reapproval may be about to happen – evidently with a green light from the Obama Administration and over strong objections from human rights and civil liberties groups.

Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the Committee’s deliberations.

“The Senate Judiciary Committee had the opportunity to pass legislation
to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed -- approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act,” said the American Civil Liberties Union.

The Committee’s actions were driven by “short-term and political considerations,” Chip Pitts, president of the Bill of Rights Defense Committee, told us. The Committee ignored “the need for a more sensible long-term, reasoned, rule-of-law approach,” he said.

Now, civil libertarians are looking to the House of Representatives, where the Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.

A number of parts of the law are due to expire at the end of next month. These are:

Section 213, which expands the government's ability to execute criminal search warrants (which need not involve terrorism) and seize property without telling the target for weeks or months.

The so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.

Section 215, which allows the FBI to seize a vast array of sensitive personal information and belongings – including medical, library and business records – using secret intelligence tools that do not require individual criminal activity. Although the records can only be seized pursuant to a court order, judges are compelled to issue these orders, making such judicial review nothing more than a rubber stamp. Sec. 215 Allows the FBI to use FISA court orders to seize any "tangible thing," including highly sensitive medical, library, business and travel records, from a wide variety of institutions under an extremely weak standard of judicial review. The Section allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation.

Section 505, which lowers the evidentiary standard for "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department, impose a blanket gag order on recipients and are not subject to judicial review. NSLs can be used to seize a wide variety of business and financial records, and in certain instances could be used to access the membership lists of organizations that provide even very limited Internet services (message boards on the ACLU's website for instance). Sec. 505 authorizes the government to seize financial, Internet, credit and telephone records without prior judicial review and without articulable suspicion that the target is a terrorist or spy.

The “roving wiretap” provision, which allows the government to tap phones and other electronic devices used by any person suspected of involvement in terrorism; a roving wiretap follows the target of the surveillance from telephone to telephone. Because there is a greater potential for abuse using roving wiretaps compared to traditional wiretaps, which apply to a single telephone, Congress insisted on important privacy safeguards when, prior to the Patriot Act, it first approved this “updated” surveillance power for criminal investigations.

Also being debated is the so-called “Material Support” Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.

The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 has also became part of the debate. Passed last summer, Congress amended the FISA law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and e-mails. Section 206 of the Patriot Act created roving wiretaps in Foreign Intelligence Surveillance Act (FISA) investigations. Section 206 erodes the basic constitutional rule of particularization by allow the government to obtain “roving wiretaps” without empowering the court to make sure that the government ascertain that the conversations being intercepted actually involve a target of the investigation. Section 206 also created “John Doe” roving wiretaps – wiretaps that need not specify a target or a device such as a telephone.

Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.

Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the “lone wolf” provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.

However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL. In the second, the government would have to notify suspects of “sneak and peek” searches within seven days instead of the 30 days currently required by the statute. “Sneak and peek” searches allow the government to search a home without notifying the resident immediately.

Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties. Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.

Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used "lone wolf" surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.

However, the proposed new legislation leaves intact the Patriot Act's so-called "material support" provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.

The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the Committee chairman, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.

Asked to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them -- was undoubtedly a huge if lamentable factor.”

He also cited the recent arrests of Najibullah Zazi and others, noting that Leahy said that in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”

Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.

“In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach, ” Pitts told us, adding,

“In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror (and avoid being accused of being ‘soft on terror’) brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed. Even nominal and sometimes actual civil liberties advocates have become more used to the ‘new normal’, seemingly forgetting the less visible but vital benefits of the liberties themselves – including for genuine and effective security, let alone for successful, prosperous, creative, dynamic open societies as opposed to closed societies like the former East Germany that used such approaches to their detriment.”

“The persistent myths and claims that the Patriot Act hasn’t been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11,” Pitts told us.

Now, all eyes are turning to the House of Representatives, where debate has already begun in the Judiciary Committee.

Congressmen Conyers, Nadler and Scott have introduced the USA PATRIOT Amendments Act of 2009, which reforms a number of Patriot Act provisions. The bill reins in the government’s spying powers and would protect the privacy of records. H.R. 3845 amends the national security letter (NSL) authority so that the government can only access communications, financial and credit records when they pertain to a terror suspect or spy. Under the original Patriot Act, the government can collect the records of innocent people whenever it deems them “relevant” to an investigation – without any oversight by an impartial court. The current standard is so low that independent audits found that approximately 50,000 are issued every year and many are issued against people two or three times removed from an actual suspect.

The Conyers-Nadler-Scott bill amends the Patriot Act’s “roving John Doe” authority to protect the privacy of communications. That authority currently permits wiretap orders even without identifying either the person or the place to be tapped. The new bill would require the government to name either the person or the place.

The Patriot Act made it easier for the government to secretly conduct searches without giving prior notice by authorizing “sneak and peek” searches whenever notice would jeopardize an investigation. H.R. 3845 seeks to protect the privacy of homes and businesses by reining in this authority by removing this broad catch-all, but permits government officials to continue secret searches in emergency or urgent circumstances.

The USA PATRIOT Amendments Act requires that gag orders that come with national security letters or section 215 orders meet traditional First Amendment standards. If a recipient of one of these requests wishes to speak out about the government’s actions, the burden will be on the government to convince a court that national security will be jeopardized if the recipient is not gagged.

But the recent indictment of a suspected New York City terrorist is already being used to stir up paranoia on the Hill. Rep. Peter King, a right-wing New York Republican who is set to challenge Sen. Kirsten Gillibrand’s senate seat in 2010, is a prime example. He says the arrest of Najibullah Zazi proves that lawmakers must renew the Patriot Act permanently.

The FBI arrested Najibullah Zazi this month after investigators collected sufficient evidence proving he was conspiring to create and use weapons of mass destruction on U.S. soil.

But King believes that Zazi's capture and indictment would not have been possible without the Patriot Act.

"All the layers of defense President Bush set up after September 11 are working. The FBI is working more closely with local police, the Patriot Act, which allows roving wiretaps... is essential," King told Fox News. "We have to have this, it's absolutely essential."

Chief among many lawmakers' complaints is that the Patriot Act undercuts privacy and threatens personal freedoms. But Republicans in particular have dismissed those criticisms, asserting the set of statutes has been indispensable in helping law enforcement agencies prevent future terrorist attacks.

As the Patriot Act approaches its sunset date, the Obama administration has signaled its interest in preserving key aspects of law -- including its provisions on the Foreign Intelligence Surveillance Court, the panel that grants federal officials the ability to conduct "roving wiretaps" on suspect terrorists. But Obama is likely to face staunch Democratic opposition to that effort, even as he promises his party members new Patriot Act provisions designed specifically to safeguard Americans' privacy rights.

While that legislative battle heats up, King on Monday reiterated the law in its original form was integral to the country's counter-terrorism strategy.

"That's why we need all these layers, all these tools," King said. "There's no silver bullet here."

Another powerful representative in Congress, Jim Sensenbrenner, wants to make the Patriot Act permanent in almost all respects. Sensenbrenner's measure would leave the hotly debated law largely intact. It also would repeal the law's "sunset" provisions, under which some of its search and surveillance powers are to expire at the end of this year.

But the bill introduced Monday contains no such sunsets and is in keeping with recent comments by Sensenbrenner that he believes the Patriot Act is not overbroad and has not been abused. It also reflects the Bush's administration's desire to make the act fully permanent.

Polling asking whether the Patriot Act should be made permanent produced the following results: No 58%, Yes 26%, Some but not all 14%.

Meanwhile, the House gave itself some breathing room by extending the expiring provisions of the PATRIOT Act until March 10th. This legislation, H.R. 4659, ensures this vital antiterrorism law does not expire and gives the Senate more time to consider the House-Senate conference report that the House passed in December with the support of 44 Democrats and nearly all Republicans. The Senate is expected to pass this legislation this week.

Meanwhile, the ACLU has written to members of the House committees urging them to rein in what it sees as the overbroad provision of the original Patriot Act.

Their letter said, “Congress rightly put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine the extraordinary powers when cooler heads would prevail.”

Whether there are cooler heads in Congress remains to be seen.