Tuesday, December 1, 2009

President Obama's Patriot Act Reversals

As most are now aware, about two months ago the Senate Judiciary Committee forwarded legislation to the full Senate that would reauthorize three expiring provisions of the Patriot Act adopted just after the September 11th attacks.

Also not widely reported was the fact that President Obama worked behind the scenes to ensure that absolutely no meaningful reforms to the Act were adopted...essentially a complete reversal of his positions as a Senator and Presidential candidate.

Though Senators Feingold and Durbin put up an admirable fight on a variety of fronts, the committee approved allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation. A proposal that would put limits on such requests was defeated.

Members also renewed the so-called “roving wiretap” provision, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

Finally, the committee renewed the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

On a brighter note, a few weeks ago Democratic Representatives John Conyers, Jerrold Nadler and Bobby Scott put forth their own PATRIOT Act reform legislation in the House.

As rightly noted by the Electronic Frontier Foundation, stating:

...the new bill is a significant improvement over the deeply flawed Senate bill, containing a substantial number of significant new checks and balances to the government's spying authorities under the PATRIOT Act — much like Senator Feingold's JUSTICE Act in the Senate, which was supported by EFF.

Not only have Representatives Conyers, Nadler, and Scott introduced a strong PATRIOT reform bill, but they've also gone even farther in seeking to protect their constituents' civil liberties by introducing a second bill (HR 3846) directed at reforming last year's FISA Amendments Act (FAA), which broadly expanded the government's authority to wiretap Americans without warrants and granted immunity to telcos that broke the law by assisting in the NSA's warrantless wiretapping program.

The second bill introduced today — which, amongst other reforms, would prohibit the "bulk collection" of Americans' emails and phone calls under the FAA and would repeal the FAA's telco immunity provision — is available here [PDF], with a section-by-section summary here [PDF]. A press release from House Judiciary describing both bills is available here.

Candidate Obama Versus President Obama

So now let's get to the debate everyone wants to see between the eloquent, pro-civil liberties "Candidate Obama" and the just as eloquent, anti-constitutional authoritarian, President Obama:

Senator Obama branded the Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In 2005, he pledged to filibuster a Bush-sponsored bill that included several of these exact components I have detailed today, calling then "just plain wrong" in a Senate speech. He argued:

"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...We don't have to settle for a Patriot Act that sacrifices our liberties or our safety -- we can have one that secures both."

It goes without saying, Obama reneged on those pledges.

He did however at least support softening some of the more outrageous constitutional abuses in the Act by imposing some civil liberties protections in the gathering and use of intelligence, on the use of torture in interrogations, and requiring at least some semblance of due process in court proceedings.

But now let's hear from President Obama, who wrote in a letter that he was advocating IN FAVOR of the most abusive provisions in the Act to stand...the same ones he claimed were "shoddy and dangerous" as a Senator.

For instance, business and citizens groups can still have their records examined by the government with minimal checks on how the information can be used and more particularly used against. Individuals often based on flimsiest of evidence can still be targeted for monitoring and surveillance if suspected of being a potential terrorist.

Organizations and individuals can still be slapped with so-called roving wiretaps (taps that can be placed on an individual or group anywhere, anytime) again based on weak evidence or unfounded suspicion....

Now President Obama justifies keeping nearly all of Bush's terror war provisions in place with the standard rationale that the government must have all the weapons needed to deal with the threat of terrorism. If you think I'm confusing Bush and Cheney with Obama, sadly, you're wrong.

To get a comprehensive breakdown of the PATRIOT Act provisions currently being debated in Congress as well as other important reform proposals being proposed, check out some of my past posts, specifically, click here for more about Feingold's Justice Act, click here for more about Obama's broken promises on this issue, click here for my discussion of the "sneak and peak" provision, and click here for more on the "Lone Wolf" provision, and click here for a detailing of the House bill.

Chip Pitts, president of the Bill of Rights Defence Committee, sums up what a lot of us privacy advocates are feeling these days:

"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...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.

President Obama's flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it's imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualised suspicion, checks and balances, and meaningful judicial review prior to government intrusions."

In a report on the Patriot Act, the American Civil Liberties Union (ACLU) said, "More than seven years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious security resources."

On that note, let me get to my featured article of the day from Raw Story entitled "ACLU: Obama’s reversal on Patriot Act reform ‘a major travesty’, Sahil Kapur writes:

Key components in the USA Patriot Act are set to expire at the end of the year, but President Barack Obama is seeking to extend them, reversing his stark opposition in the past to the same provisions.

"The president's reversal on Patriot Act reform is a major travesty," said Michelle Richardson, Legislative Counsel for the leading civil rights group ACLU, in an interview with Raw Story. "There have been many, many abuses of power in the last four years."


Obama has championed the continuation of all three provisions until at least 2013, a wish that has been granted by the Senate Judiciary Committee and two-thirds fulfilled by the House counterpart. (The House version slaps greater oversight and restrictions on acquiring personal records of non-US citizens.) While he has always been resolutely opposed to former President George W. Bush's vision of the Act, he has defended certain parts of it, and voted in 2006 to re-authorize an altered version.

"Overall, the Obama administration has made marginal improvements but is largely a continuation of the Bush administration with respect to civil liberties," Richardson told Raw Story, referring to the president's
rising acquiescence to his predecessor's approach.

Click here to read the rest of the article.

It goes without saying that there are a whole lot of Democrats in Congress that need to speak up and oppose the continuation of these provisions just as they did when then President Bush was asking for the same thing! One positive out of all this is that for those of us that do care about privacy, the Constitution, living in a free society...and all that stuff, at least we'll be able to determine who in Congress really, truly believes in these same principles, and who are just playing us for suckers.

As we all should be starkly aware of now, it is easy to oppose a President that comes from the "other Party", and a whole lot more difficult to do so against one from the same...which is itself a sad statement.

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