ACLU: Let Spy Laws Fade Into the Sunset

One of the nation’s leading legal rights groups is calling on the U.S. Congress to make major changes in the USA PATRIOT Act to reverse parts of the hurriedly passed law that have been found unconstitutional or have been abused to collect information on innocent people.

On Dec. 31, 2009, three provisions of the PATRIOT Act will expire unless reenacted. The American Civil Liberties Union (ACLU) says this provides lawmakers with "the perfect opportunity for Congress to examine all of our surveillance laws."

The PATRIOT Act was rushed through a stunned Congress, with virtually no debate, shortly after the terrorist attacks of Sept. 11, 2001. The act substantially expanded the powers of law enforcement agencies.

The ACLU says many of these expanded powers have been abused, and that "the public has yet to receive real information about how these powerful tools are being used to collect information on Americans and how that information is being used."

The ACLU’s recent report, "Reclaiming Patriotism" [.pdf], says, "Congress should begin vigorous and comprehensive oversight hearings to examine all post-9/11 national security programs to evaluate their effectiveness and their impact on Americans’ privacy and civil liberties. This oversight is essential to the proper functioning of our constitutional system of government and becomes even more necessary during times of crisis."

Mike German is an adviser to the ACLU on national security, immigration, and privacy, and a former FBI agent who resigned from the agency in protest of what he saw as continuing failures in the FBI counter-terrorism program.

"The PATRIOT Act, the FISA Amendments, and the Mukasey Attorney General Guidelines have vastly expanded the government’s authority to pry into Americans’ private lives, even without suspecting wrongdoing," German told IPS. "The American people have the right to know how these powers are being used, and Congress has the duty to find out."

The guidelines adopted by Bush-era Attorney General Michael Mukasey in 2008 loosened restrictions on the FBI to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion.

The ACLU report identifies sections of the PATRIOT Act that need to be amended. These are:

National Security Letters (NSLs): The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit-reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people. Government reports confirm that upward of 50,000 of these secret record demands go out each year.

In response to an ACLU lawsuit, Doe v. Holder, the Second Circuit Court of Appeal struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records. The FBI has admitted numerous incidences of NSLs being improperly used.

The "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 Sept. 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 law gives the government the power to shut down charitable organizations suspected of financing terrorist activities with virtually no notice and no due process.

The 2008 amendments to the Foreign Intelligence Surveillance Act: This past summer, Congress passed a law to permit the government to conduct warrantless and suspicionless dragnet collection of U.S. residents’ international telephone calls and e-mails. The ACLU and many other similar groups are seeking amendments to provide "meaningful privacy protections and judicial oversight of the government’s intrusive surveillance power."

The ACLU report charges that "More than seven years after its implementation, there is little evidence to demonstrate that the PATRIOT Act has made America more secure from terrorists. But there are many unfortunate examples that the government abused these authorities in ways that both violated the rights of innocent people and squandered precious security resources."

Little is known about the government’s use of many of its authorities under the PATRIOT Act, but raw numbers available through government reports reflect a rapidly increasing level of surveillance. The statistics show skyrocketing numbers of Foreign Intelligence Surveillance Court orders, NSL requests and Suspicious Activity Reports while terrorism prosecution numbers are down. The government has increased the numbers of terrorism investigations it has declined to prosecute.

Reports from the Department of Justice Inspector General (IG) revealed the government’s widespread misuse of NSLs and the authorities contained in Section 215, which allow the FBI to demand information about innocent people who are not the targets of any investigation.

The first two IG audits, covering NSLs and Section 215 orders issued from 2003 through 2005, were released in March 2007. They confirmed widespread FBI mismanagement, misuse, and abuse of these PATRIOT Act authorities.

The NSL audit revealed that the FBI managed its use of NSLs so negligently that it literally did not know how many NSLs it had issued. As a result, the FBI seriously underreported its use of NSLs in its previous reports to Congress.

The IG also found that FBI agents repeatedly ignored or confused the requirements of the NSL authorizing statutes, and used NSLs to collect private information against individuals two or three times removed from the subjects of FBI investigations.

In March 2008, the IG released a second pair of audit reports covering 2006 and evaluating the reforms implemented by the DOJ and the FBI after the first audits were released in 2007. The new reports identified many of the same problems discovered in the earlier audits.

The 2008 NSL report showed that the FBI issued 49,425 NSLs in 2006 (a 4.7 percent increase over 2005), and it confirmed the FBI is increasingly using NSLs to gather information on U.S. citizens (57 percent in 2006, up from 53 percent in 2005).

The 2008 IG audit also revealed that high-ranking FBI officials, including an assistant director, a deputy assistant director, two acting deputy directors, and a special agent in charge, improperly issued 11 "blanket NSLs" in 2006 seeking data on 3,860 telephone numbers. None of these "blanket NSLs" complied with FBI policy, and eight imposed unlawful non-disclosure requirements on recipients.

(Inter Press Service)

Author: William Fisher

William Fisher writes for Inter Press Service.