| | |  Editorials | Issues | December 2009 
Under the Radar, Obama Pushes for Patriot Act Renewal
 Richard Moore - Lakeland Times
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December 24, 2009
With key sections of the U.S. Patriot Act set to expire Dec. 31, the Obama administration - essentially tiptoeing through the corridors of Congress and using the raucous health care debate as cover - has quietly maneuvered for renewal of the controversial provisions, which he opposed as a senator.
Perhaps the most contentious measure is the business records provision, also known as the library provision, which allows the government to seek a court order forcing private entities such as banks, hospitals, and libraries to hand over "any tangible thing" - from library circulation records to medical records - officials think is relevant in a terrorist investigation.
This week, with time running out and no time to debate the bill on its merits, Democratic supporters of reauthorization in the Senate tried but fail to win House support to embed the provisions in a separate $626 billion Pentagon funding bill. The House has passed a bill with stronger civil liberties protections, but that version is not expected to survive.
Congress will now likely approve temporary extensions and deal with reauthorization early next year, giving opponents renewed hope they can still defeat or modify aspects of the national security language.
In early October, the Senate Judiciary Committee voted 11-8 to send the measure to the Senate floor. The provisions would allow the government to continue to use roving wiretaps to monitor suspects, to obtain business records of national security targets, and to track and surveil so-called 'lone wolves' whose connection to a foreign government or terrorist group has not been established.
The legislation, co-sponsored by judiciary committee chairman Patrick Leahy (D-Vt.) and Sen. Dianne Feinstein (D-Calif.), would tweak the ability of the FBI to gain certain personal records of citizens, requiring the agency to show "specific facts" that requested records pertain to a terrorism investigation.
Core language remains
Still, the most controversial aspects remain intact. Earlier this year, Sen. Russ Feingold (D-Wisconsin) had worked to place language in the bill strengthening civil liberties protections, but in the judiciary committee the Obama administration worked with Republicans to craft seven amendments, effectively watering down Feingold's work.
Feingold said the bill that emerged from the judiciary committee left him "scratching his head."
"The Patriot Act reauthorization bill passed by the Judiciary Committee falls far short of adequately protecting the rights of innocent Americans," Feingold said in a statement. "Among the most significant problems is the failure to include an improved standard for Section 215 orders (getting personal information through national security letter requests), even though a Republican controlled Judiciary Committee unanimously supported including the same standard in 2005."
Feingold said what was most upsetting to him was the willingness of too many members of the Democratic-controlled committee to defer to behind-the-scenes complaints from the FBI and the Justice Department.
"We should, of course, carefully consider their perspective, but it is our job to write the law and to exercise independent judgment," Feingold said. "After all, it is not the prosecutors' committee; it is the judiciary committee. And while I am left scratching my head trying to understand how a committee controlled by a wide Democratic margin could support the bill it approved, I will continue to work with my colleagues to try to make improvements to this bill."
Feingold opposed the bill in committee, but Sen. Herb Kohl voted for reauthorization in the end, along with Democrats Al Franken of Minnesota, Charles Schumer of New York and Feinstein. Joining Feingold in opposition were Democrats Dick Durbin of Illinois and Arlen Specter of Pennsylvania, and Republicans Tom Coburn of Oklahoma, Lindsey Graham of South Carolina, Charles Grassley of Iowa, Orin Hatch of Utah, and Jeff Sessions of Alabama.
Feingold did win an amendment that restricts so-called "sneak and peek" searches that allow the government to enter a home and perform a search without having to inform the subject of the search until months later. The senator's amendment requires that subjects of sneak-and-peek searches be notified within seven days, unless a judge grants an extension.
In 2008, the federal government reported 763 sneak-and-peak warrant requests and 528 requests for extensions, as of the year ending Sept. 30, 2008. Four of the applications were denied.
Only three of the 763 warrant requests were terrorism related. Sixty-five percent concerned drug investigations.
The provisions
The first of the three provisions would allow a secret court to continue to permit "roving wiretaps" without the government identifying who is being targeted, or which specific phone lines or communication devices are to be monitored. What officials must do is assert that the target is an agent of a foreign power or a suspected terrorist.
The second provision, Section 215 of the Patriot Act, permits the FBI to ask a FISA, or secret court, to order the production of any item relevant to a FISA investigation. Specifically, section 215 permits the FBI to "make an application (to the court) for an order requiring the production of any tangible things (including books, records, papers, documents, and other items)..."
As with roving wiretaps, the government must assert that the records are relevant to foreign intelligence gathering and/or a terrorism investigation.
Under the "lone wolf" statute, the U.S. may target for surveillance non-U.S. persons it believes are engaging in terrorism or are preparing to undertake terrorist activities, whether or not that person can be linked to a foreign power or organization. Previously, the government had to establish such a link.
In a September letter to Leahy, assistant attorney general Ronald Weich recommended reauthorization of all three provisions on behalf of the Obama administration. Roving wiretaps helps authorities track targets who take measures to thwart FISA surveillance, he stated.
"It has proven an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders," Weich wrote.
The provision for business records was used 220 times between 2004 and 2007, Weich wrote, but government auditing showed no abuse had been uncovered.
"At the time of the USA Patriot Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries," he wrote. "This simply has not occurred, even in the environment of heightened terrorist threat activity. The oversight provided by Congress since 2005 and the specific oversight provisions added to the statute in 2006 have helped to ensure that the authority is being used as intended."
Weich did say in the letter the administration might be willing to compromise on some of the language to include more civil liberties protections.
"The administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities," Weich stated.
How time flies
As an Illinois senator in 2005, Barack Obama opposed the core of these provisions when they were up for renewal then, saying he wanted to safeguard the country from terrorist attack but had concerns about seeking business records and the wiretapping language.
"But soon after the Patriot Act passed, a few years before I ever arrived in the Senate, I began hearing concerns from people of every background and political leaning that this law - the very purpose of which was to protect us - was also threatening to violate our rights and freedoms as Americans," Obama said in a Dec. 15, 2005, speech on the Senate floor. "That it didn't just provide law enforcement the powers it needed to keep us safe, but powers it didn't need to invade our privacy without cause or suspicion."
Obama told his colleagues he had been working in a bipartisan way to improve the law.
"That's why as it comes time to reauthorize this law, we've been working in a bipartisan way to do both - to show the American people that we can track down terrorists without trampling on our civil liberties," he said. "To show the American people that the federal government will only issue warrants and execute searches because it needs to, not because it can. What we have been trying to achieve, under the leadership of a bipartisan group of senators, is some accountability in this process - to get answers and see evidence where there is suspicion."
Nonetheless, in conference, the Congress had jettisoned the bill's safeguards, leaving him no choice but to oppose reauthorization, he said.
"This is legislation that puts our own Justice Department above the law," Obama said. "When National Security Letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive or wide-ranging, without ever going before a judge to prove that the search is necessary. They simply need sign-off from a local FBI official. That's all."
Obama said the legislation ignored American case law and fundamental principles.
"And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document - through library books they've read and phone calls they've made - this legislation gives people no rights to appeal the need for such a search in a court of law," he said. "No judge will hear their plea, no jury will hear their case. This is just plain wrong."
Three years later, however, Obama was singing a different tune, voting to allow warrantless wiretaps of Americans' calls if they were communicating overseas with somebody the government believed was linked to terrorism.
He also supported immunizing the nation's telecommunication companies from lawsuits charging that they had participated in the Bush administration's warrantless wiretapping program.
Richard Moore can be reached at rmmoore1(at)verizon.net. |
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