Friday, October 2, 2009

Lawmakers Caving on Patriot Act Reforms

What can I say? I'm simply running out of outrage. My "despair meter" is on "8", my hope meter on "2". I speak of course of the latest Democratic party cave in on the Patriot Act. It should be remembered, that, to the Democrats credit, it was they who were able to force a sunset clause into the original Constitution smashing Patriot Act (yet Senator Feingold was the single Senator to vote against the Act as a whole).

So, because they at least did that, we now have the opportunity to right so many of the Patriot Act wrongs. And, if the past couple days are any indicator, even with a huge Democratic majority in the Senate, whatever changes will be instituted, they will be small, and some even just cosmetic.

Remember, it was just last week that we found out that only three of the 763 "sneak-and-peek" requests in fiscal year 2008 involved terrorism cases, according to a July 2009 report from the Administrative Office of the U.S. Courts. Sixty-five percent were drug cases! This was a provision sold to us as necessary to protect us from terrorism - not to be used to bust pot dealers and spy on peace activists. But then, we all saw this coming, didn't we?

At any rate, with every revelation since the Patriot Act's inception, a stronger and stronger case has been built that its been abused in every sense of the word. Yet, here we are, hearing the same fearmongering as we did after 9/11: "We need these to keep America safe! The terrorists are coming!"

All of this is code for "let's scrap the Fourth Amendment"...only they won't just come out and say it. With all that said, let's get to the specifics, and how Senators Leahy and Feinstein (not Feingold of course) gutted their own Patriot Act reforms at the last minute.

Wired Magazine has the story ("Lawmakers Cave to FBI in Patriot Act Debate"):

The Patriot Act was adopted six weeks after the 2001 terror attacks, and greatly expanded the government’s power to intrude into the private lives of Americans in the course of anti-terror and criminal investigations. Three provisions are expiring at year’s end. During a Senate Judiciary Committee hearing, Sen. Patrick Leahy, the committee chairman, and Sen. Dianne Feinstein (D-California) introduced last-minute changes (.pdf) that would strip away some of the privacy protections Leahy had espoused just the week before. The Vermont Democrat said his own, original proposal of last week could jeopardize ongoing terror investigations.


Section 215. That allows a secret court — known as the Foreign Intelligence Surveillance Act Court or FISA court — to authorize broad warrants for most any type of records, including those held by banks, libraries and doctors. The Leahy-Feinstein amendment, which is likely to be adopted by the committee and sent to the full Senate next week, does not require the government show a connection between the items sought under a Section 215 warrant and a suspected terrorist or spy.


Sen. Russ Feingold (D-Wisconsin) was not so sure of the amendment, although the panel unanimously adopted it for consideration. “We must not continue to kick this can down the road. The rights and freedoms of Americans are at stake,” he said. The government’s Section 215 power is riddled with “rampant misuse and abuse,” he said, but would not elaborate because the information was classified.


While the bulk of Thursday’s hearing surrounded Section 215, two other expiring provisions received scant attention.

One is the so-called “lone-wolf” measure that allows FISA court warrants for the electronic monitoring of a person even without showing that the suspect is an agent of a foreign power or a terrorist. The government has said it has never invoked that provision, but said it wants to keep the authority to do so.

The other expiring measure is the so-called “roving wiretap” provision. It allows the FBI to obtain wiretaps without identifying the target or what method of communication is to be tapped. The FISA court grants about 22 such warrants annually.


Feingold, meanwhile, is likely to introduce two more amendments to the package before next week’s vote, he said.

One concerns limiting the government’s power to issue so-called National Security Letters. The letters allow the FBI, without a court order, to obtain telecommunication, financial and credit records relevant to a government investigation. The FBI issues about 50,000 of them annually and an internal watchdog has repeatedly found abuses of the powers. The new standard would authorize those records if the investigation concerned terrorism or spy activities.

A 2007 Inspector General Report showed that the FBI circumvented that law to acquire access to records that weren’t relevant to any authorized FBI investigation.

The other Feingold amendment focuses on withdrawal of telecom immunity legislation. That legislation, signed by President George W. Bush and backed by then Sen. Barack Obama, killed federal lawsuits claiming the telcos illegally assisted the Bush administration in funneling Americans’ electronic communications to the National Security Agency without warrants.

Click here to read the article in its entirety.

I think it goes without saying that these "reforms" fall far short of addressing the concerns of privacy and civil liberties advocates.

On the positive front, Senator Feingold's amendment regarding sneak and peek search warrants, reducing the period during which the government may delay notice to the searched party from 30 days to 7 days, in order to bring that PATRIOT authority in line with court decisions finding that delay beyond 7 days violates the Fourth Amendment passed.

Another small brights spot was a Leahy-Feinstein provision that library records are subject to a higher standard, and that they must be relevant to a terror investigation to be subject to a Section 215 warrant.

Check out some of my past posts for more detailed analysis of Senator Feingold's Justice Act, the Senator's grilling of the Assistant Attorney General about the use of "sneak and peak"authority, and efforts to repeal the telecom immunity provision.

Better still, check out's Glenn Greenwald's take on the possibilities that we'll see real reforms of the Patriot Act. There's simply nobody better than this this little gem:

"Isn't it so interesting how the phrase "Patriot Act" was the symbol of everything Democrats claimed to find so heinous during the Bush years, but now that there's a Democratic President, Senate and Congress, it's absolutely certain that the Patriot Act will continue, and civil libertarians are reduced to hoping that there may be some tiny modifications to it, and even that's highly unlikely?"


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