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

The USA Patriot Act, rushed into law by a panicky US 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. Section 215 Allows the FBI to use FISA (Foreign Intelligence
Surveillance Act) 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 web site for instance). Section 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 9/11, 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 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 suspicionless dragnet collection of US residents’ international
telephone calls and emails. Section 206 of the Patriot Act created roving wiretaps
in 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 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 an NSL subpoena, 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, Sen. Patrick Leahy
(D-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 US. 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 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 NSLs
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 US 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 counterterrorism 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 over
broad 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 percent; Yes, 26 percent; some but not all, 14 percent.

Meanwhile, the House gave itself some breathing room by extending the expiring
provisions of the Patriot Act until March 10. 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 over broad 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.