No Sunset for Sweeping PATRIOT Act Powers?

The USA PATRIOT Act, rushed into law by a panicky U.S. Congress in the aftermath of the terrorist attacks of Sep. 11, 2001, gave the government broad surveillance powers to spy on innocent citizens. But it also stipulated that three of its more controversial provisions should expire next month unless reapproved by lawmakers.

And it appears that reapproval may be about to happen – evidently with a green light from the Barack 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 (ACLU).

The committee’s actions were driven by "short-term and political considerations," Chip Pitts, president of the Bill of Rights Defense Committee, told IPS.

The Judiciary 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 that body’s 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 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.

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 Sep. 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 become 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 FISA investigations. Section 206 erodes the basic constitutional rule of particularization by allowing 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.

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 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 U.S. citizens.

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 chair, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate.

Asked by IPS 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 IPS.

"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," he added.

"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 IPS.

(Inter Press Service)

Author: William Fisher

William Fisher writes for Inter Press Service.