Saturday, February 19, 2011

Both Democrats and Republicans Support the Patriot Act!

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"There's not a dime's worth of difference between the Republicans and the Democrats."
- Governor George Wallace, 1972
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Obama, in Europe, signs Patriot Act extension
Jim Abrams, Associated Press
Fri., May 27, 2011
WASHINGTON – Minutes before a midnight deadline, President Barack Obama signed into law a four-year extension of post-Sept. 11 powers to search records and conduct roving wiretaps in pursuit of terrorists.
"It's an important tool for us to continue dealing with an ongoing terrorist threat," Obama said Friday after a meeting with French President Nicolas Sarkozy.
With Obama in France, the White House said the president used an autopen machine that holds a pen and signs his actual signature. It is only used with proper authorization of the president.
Congress sent the bill to the president with only hours to go on Thursday before the provisions expired at midnight. Votes taken in rapid succession in the Senate and House came after lawmakers rejected attempts to temper the law enforcement powers to ensure that individual liberties are not abused.
The Senate voted 72-23 for the legislation to renew three terrorism-fighting authorities. The House passed the measure 250-153 on an evening vote.
A short-term expiration would not have interrupted ongoing operations but would have barred the government from seeking warrants for new investigations.
Congress bumped up against the deadline mainly because of the stubborn resistance from a single senator,
Republican freshman Rand Paul of Kentucky, who saw the terrorist-hunting powers as an abuse of privacy rights. Paul held up the final vote for several days while he demanded a chance to change the bill to diminish the government's ability to monitor individual actions.
The measure would add four years to the legal life of roving wiretaps, authorized for a person rather than a communications line or device; court-ordered searches of business records; and surveillance of non-American "lone wolf" suspects without confirmed ties to terrorist groups.
The roving wiretaps and access to business records are small parts of the USA Patriot Act enacted after the Sept. 11, 2001, attacks. But unlike most of the act, which is permanent law, those provisions must be renewed periodically because of concerns that they could be used to violate privacy rights. The same applies to the "lone wolf" provision, which was part of a 2004 intelligence law.
Paul argued that in the rush to meet the terrorist threat in 2001 Congress enacted a Patriot Act that tramples on individual liberties. He had some backing from liberal Democrats and civil liberties groups who have long contended the law gives the government authority to spy on innocent citizens.
Sen. Dick Durbin, D-Ill., said he voted for the act in 2001 "while ground zero was still burning." But "I soon realized it gave too much power to government without enough judicial and congressional oversight."
Sen. Mark Udall, D-Colo., said the provision on collecting business records can expose law-abiding citizens to government scrutiny. "If we cannot limit investigations to terrorism or other nefarious activities, where do they end?" he asked.
"The Patriot Act has been used improperly again and again by law enforcement to invade Americans' privacy and violate their constitutional rights," said Laura W. Murphy, director of the ACLU Washington legislative office.
Still, coming just a month after intelligence and military forces tracked down and killed Osama bin Laden, there was little appetite for tampering with the terrorism-fighting tools. These tools, said Senate Republican leader Mitch McConnell of Kentucky, "have kept us safe for nearly a decade and Americans today should be relieved and reassured to know that these programs will continue."
Intelligence officials have denied improper use of surveillance tools, and this week both FBI Director Robert Mueller and Director of National Intelligence James Clapper sent letters to congressional leaders warning of serious national security consequences if the provisions were allowed to lapse.
The Obama administration says that without the three authorities the FBI might not be able to obtain information on terrorist plotting inside the U.S. and that a terrorist who communicates using different cell phones and email accounts could escape timely surveillance.
"When the clock strikes midnight tomorrow, we would be giving terrorists the opportunity to plot attacks against our country, undetected," Senate Majority Leader Harry Reid said on the Senate floor Wednesday. In unusually personal criticism of a fellow senator, he warned that Paul, by blocking swift passage of the bill, "is threatening to take away the best tools we have for stopping them."
The nation itself is divided over the Patriot Act, as reflected in a Pew Research Center poll last February, before the killing of bin Laden, that found that 34 percent felt the law "goes too far and poses a threat to civil liberties. Some 42 percent considered it "a necessary tool that helps the government find terrorists." That was a slight turnaround from 2004 when 39 percent thought it went too far and 33 percent said it was necessary.
Paul, after complaining that Reid's remarks were "personally insulting," asked whether the nation "should have some rules that say before they come into your house, before they go into your banking records, that a judge should be asked for permission, that there should be judicial review? Do we want a lawless land?"
Paul agreed to let the bill go forward after he was given a vote on two amendments to rein in government surveillance powers. Both were soundly defeated. The more controversial, an amendment that would have
restricted powers to obtain gun records in terrorist investigations, was defeated 85-10 after lawmakers received a letter from the National Rifle Association stating that it was not taking a position on the measure.
According to a senior Justice Department national security official testifying to Congress last March, the government has sought roving wiretap authority in about 20 cases a year between 2001 and 2010 and has sought warrants for business records less than 40 times a year, on average. The government has yet to use the lone wolf authority.
But the ACLU also points out that court approvals for business record access jumped from 21 in 2009 to 96 last year, and the organization contends the Patriot Act has blurred the line between investigations of actual terrorists and those not suspected of doing anything wrong.
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Two Democratic critics of the Patriot Act, Sen. Ron Wyden of Oregon and Udall of Colorado, on Thursday extracted a promise from Senate Intelligence Committee chairman Dianne Feinstein, D-Calif., that she would hold hearings with intelligence and law enforcement officials on how the law is being carried out.
Wyden says that while there are numerous interpretations of how the Patriot Act works, the official government interpretation of the law remains classified. "A significant gap has developed now between what the public thinks the law says and what the government secretly claims it says," Wyden said.
Associated Press writers Laurie Kellman and Pete Yost contributed to this report.
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Sen. Wyden Decries “Secret Law” on PATRIOT Act
by Steven Aftergood
May 25th, 2011
An amendment offered on May 24 by Sen. Ron Wyden would have challenged the Administration’s reliance on what he called “secret law” and required the Attorney General to explain the legal basis for its intelligence collection activities under the USA PATRIOT Act. But that and other proposed amendments to the PATRIOT Act have been blocked in the Senate.
“The public will be surprised… when they learn about some of the interpretations of the PATRIOT Act,” Sen. Wyden said, based on his access to classified correspondence between the Justice Department and the Senate Intelligence Committee.
“U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public.”
“We can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used,” Sen. Wyden said. “But I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means.”
But the Senate moved toward cloture on reauthorization of the PATRIOT Act provisions and the Wyden amendment, which was co-sponsored by several Senate colleagues, was not permitted to be offered or to be voted upon.
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The House Judiciary Committee issued a report last week on the reauthorization of surveillance provisions in the USA PATRIOT Act, with a lengthy dissent from the minority members of the Committee. See “FISA Sunsets Reauthorization Act of 2011,” House Report 112-79, part 1, May 18, 2011. http://www.fas.org/irp/congress/2011_rpt/fisa-reauth.html
In 2008, then-Sen. Russ Feingold chaired a Senate Judiciary Committee hearing on “Secret Law and the Threat to Democratic and Accountable Government.” http://www.fas.org/sgp/congress/2008/law.html
Update: On May 26, Senators Wyden, Udall, Merkley, and Feinstein engaged in a colloquy on secret law and noted an agreement with Senator Feinstein to hold hearings on the matter in the Senate Intelligence Committee. Senators Wyden and Udall spoke further on the subject here: http://www.fas.org/irp/congress/2011_cr/s052611.html
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There’s a Secret Patriot Act, Senator Says
By Spencer Ackerman
May 25, 2011
You think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden says it’s worse than you know.
Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy ”dragnets” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.
“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”
What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called “business-records provision,” which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.
“It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think
the public has a right to public debate about it.”
That’s why Wyden and his colleague Sen. Mark Udall offered an amendment on Tuesday to the Patriot Act reauthorization.
The amendment, first reported by Marcy Wheeler, blasts the administration for “secretly reinterpret[ing] public laws and statutes.” It would compel the Attorney General to “publicly disclose the United States Government’s official interpretation of the USA Patriot Act.” And, intriguingly, it refers to “intelligence-collection authorities” embedded in the Patriot Act that the administration briefed the Senate about in February.
Wyden says he “can’t answer” any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information — something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.
“I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected,” he says.
Surveillance under the business-records provisions has recently spiked. The Justice Department’s official disclosure on its use of the Patriot Act, delivered to Congress in April, reported that the government asked the Foreign Intelligence Surveillance Court for approval to collect business records 96 times in 2010 — up from just 21 requests the year before. The court didn’t reject a single request. But it “modified” those requests 43 times, indicating to some Patriot-watchers that a broadening of the provision is underway.
“The FISA Court is a pretty permissive body, so that suggests something novel or particularly aggressive, not just in volume, but in the nature of the request,” says Michelle Richardson, the ACLU’s resident Patriot Act lobbyist. “No one has tipped their hand on this in the slightest. But we’ve come to the conclusion that this is some kind of bulk collection. It wouldn’t be surprising to me if it’s some kind of internet or communication-records dragnet.” (Full disclosure: My fiancée works for the ACLU.)
The FBI deferred comment on any secret interpretation of the Patriot Act to the Justice Department. The Justice Department said it wouldn’t have any comment beyond a bit of March congressional testimony from its top national security official, Todd Hinnen, who presented the type of material collected as far more individualized and specific: “driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, and the like.”
But that’s not what Udall sees. He warned in a Tuesday statement about the government’s “unfettered” access to bulk citizen data, like “a cellphone company’s phone records.” In a Senate floor speech on Tuesday, Udall urged Congress to restrict the Patriot Act’s business-records seizures to “terrorism investigations” — something the ostensible counterterrorism measure has never required in its
nearly 10-year existence.
Indeed, Hinnen allowed himself an out in his March testimony, saying that the business-record provision “also” enabled “important and highly sensitive intelligence-collection operations” to take place. Wheeler speculates those operations include “using geolocation data from cellphones to collect information on the whereabouts of Americans” — something our sister blog Threat Level has reported on extensively.
It’s worth noting that Wyden is pushing a bill providing greater privacy protections for geolocation info.
For now, Wyden’s considering his options ahead of the Patriot Act vote on Thursday. He wants to compel as much disclosure as he can on the secret interpretation, arguing that a shadow broadening of the Patriot Act sets a dangerous precedent.
“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”
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Senate votes to extend provisions of Patriot Act
Jim Abrams, Associated Press Writer
Tue Feb 15, 2011
http://news.yahoo.com/s/ap/20110216/ap_on_re_us/us_patriot_act
WASHINGTON – The Senate on Tuesday voted to extend for 90 days the legal life of three post-Sept. 11 terrorism-fighting measures, including the use of roving wiretaps, that are set to expire at the end of the month.
The short-term extension gives lawmakers a chance to review the measures that critics from both the right and left say are unconstitutional infringements on personal liberties.
The Senate voted 86-12 a day after the House agreed to extend the three provisions, including two from the 2001 USA Patriot Act, until Dec. 8. The two chambers must now agree on a common approach. With Congress in recess next week, there is pressure to reach a compromise this week.
The measures include the authority to initiate roving wiretaps on multiple electronic devices and the authority to obtain court-approved access to business records considered relevant to terrorist investigations. The third "lone wolf" provision, part of a 2004 law, permits secret intelligence surveillance of non-U.S. individuals not known to be linked to a specific terrorist activity.
Without the three provisions, said Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., "our law enforcement and intelligence agencies would lack important tools to protect this nation."
But from the inception of the Patriot Act in the days after the Sept. 11 attacks, the increased surveillance powers have been subject to scrutiny and criticism from both conservatives and liberals who say they violate free speech rights and rights against unwarranted searches and seizures.
"We knew we were in a very emotional state" after the attacks, said Sen. Dick Durbin, D-Ill. He said the provisions give the government access to sensitive personal records such as medical, library and gun records, and "can lead to government fishing expeditions that target, unfortunately, innocent Americans."
Freshman Republican Rand Paul of Kentucky agreed that "in the fear after 9/11 we didn't debate these things fully."
Paul sent out a letter to his Senate colleagues earlier in the day, saying that in the wake of the attacks the government "greatly expanded its own power, ignoring obvious answers in favor of the permanent expansion of a police state."
Senate Judiciary Committee Chairman Pat Leahy, D-Vt., has introduced legislation, scheduled to be taken up by his committee on Thursday, that would extend the three provisions through 2013 while tightening up oversight. Feinstein has also called for extension through 2013 while several Republicans have proposed that they be made permanent.
"The bill I hope we will consider before May 27 would give the intelligence community the certainty it needs by extending these expiring authorities while also strengthening congressional and judicial oversight," Leahy said.
The White House, in a statement last week regarding the House bill, said it "does not object" to the 10-month extension proposed by the House but would prefer continuing the authority through the end of 2012 because "longer duration provides the necessary certainty and predictability that our nation's intelligence and law enforcement agencies require."
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A Patriot Act Surprise
The New York Times, Editorial
Published: February 12, 2011
Republicans have a long history of favoring small government except when it comes to surveillance and security, at which point civil liberties take a back seat. Last week, however, 26 Republicans in the House demonstrated a remarkable consistency by joining 122 Democrats to prevent the extension of three questionable provisions of the Patriot Act, the post-9/11 law created during the Bush administration.
The vote splashed some cold water on the House Republican leadership, which had been so confident that it raised the extension under fast-track rules that require a two-thirds majority. The leadership is planning to bring it back this week under the normal rules. It is almost certain to pass and be sent to the Senate.
Nonetheless, the concerns that briefly brought together liberals, Tea Party members and longtime centrists from both parties should send a message to the White House and the Senate. The provisions of the Patriot Act should be carefully re-examined before being hastily reauthorized year after year. The Tea Party-backed congressman Justin Amash of Michigan was right to say that some raise serious concerns about violating the ban on unreasonable searches and seizures.
Three provisions in the act are set to expire on Feb. 28, and would be renewed under the House bill, supported by the Obama administration, through December.
One would allow a roving wiretap on a terror suspect to monitor his conversations as he moves from phone to phone. That can be a useful tool, but the authorization is so broad that the government does not even have to specify the suspect’s name to get a warrant. The failure to provide a more narrow identification of the suspect is too lax and could lead to abuse.
Another expiring provision has long raised serious civil liberties concerns, allowing the government to
examine library and bookstore records of suspects, along with hard drives, tax documents and gun records. Investigators are not required to show probable cause that the material is related to a terrorist investigation.
The third provision, allowing surveillance of “lone wolf” suspects who may not be tied to recognized terror organizations, is also overly broad but has never been used. Rather than renew it without debate, the government should explain whether it is really necessary.
The extensions will probably pass the House this week — though leaders do not plan to give anyone a chance to amend them — and go to the Senate, which should provide another opportunity for reconsideration. Senator Patrick Leahy of Vermont, the Judiciary Committee chairman, has introduced a bill that would add several safeguards to the act, most notably the phasing out of “national security letters,” which the F.B.I. has used to obtain evidence without a court order. These letters have been subject to widespread misuse and have never received proper oversight.
Unfortunately, the same bill that would bring the letters under control would extend the three expiring provisions in the Patriot Act through 2013. It is a much better measure, however, than a bill by Senator Dianne Feinstein that would extend the provisions for three more years without the new safeguards, or one by Senator Mitch McConnell that would make the three provisions permanent. Congress should not miss an opportunity to wield some oversight on this issue and determine whether the government could achieve its goals with less sweeping surveillance powers.
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