Monday, January 31, 2011

The Silent Renewal of The Patriot Act

It wasn't long ago that the American public, and certainly the majority of congressional Democrats would have been rightly outraged by Patriot Act provisions – currently in the process of being renewed AGAIN – that allow for broad warrants to be issued by a secretive court for any type of record, without the government having to declare that the information sought is connected to a terrorism investigation; or that allow a secret court to issue 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; and of course, that allow the government to search your home as long as it doesn't tell you it did.

But that was then, this is now. Granted, during the Bush years there was at least some resistance in Congress to the Act, and at least some attention was given to the numerous, and continuous government abuses of the law. As the years have passed however, and a Democrat now sits in the White House, no significant efforts are being undertaken any longer, particularly with the last elections defeat of privacy champion Russ Feingold, to curb some of the Acts more egregious provisions.

If  you can stomach it, here's a recent defense of the Patriot Act and torture from the war criminal himself, George W. Bush:

Sadly, we are on the brink of yet another renewal of the act, with the active support of what was once an ardent critic of it - President Obama. The last time it was renewed (two years ago), Senators Feingold and Durbin put up an admirable fight on a variety of fronts - to no avail. And this time, as with the last time, all expect the renewal of provisions 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; the continuation of so-called “roving wiretaps”, 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, also expected to be renewed is 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.

Yes, Senator Patrick Leahy is offering SOME resistance, with a few small modifications, but nothing close to what is needed. Leahy's changes are aimed at heightening oversight include language requiring the government to list the facts and circumstances that justify obtaining a court order to retrieve records. Current law states the records are presumed relevant, so long as they are associated with a foreign power, the activities of a suspected agent of a foreign power, or an individual in contact with such an agent.

In addition, the Senate proposal raises the standard for gaining permission to conduct wiretaps. Existing law mandates that the government certify the information sought is foreign intelligence data or relevant to a terrorist investigation. The new measure would demand the government provide facts that substantiate the belief that the information gleaned will likely be relevant - including greater restrictions to the so-called library provision.

But, few believe these changes will be adopted. As reported on the Talking Points Memo (TPM), the ACLU isn't all that impressed by the new restrictions - even if they were to become law. Rachel Slajda of TPM writes:

Leahy's bill would raise the bar. The feds would do more to show a court that they need the records. The people who get the orders for records -- called "National Security Letters" -- could challenge the gag order immediately, instead of waiting a year.

The ACLU's lead lobbyist on the Patriot Act says that's a step in the right direction. But it's not enough. What the ACLU wants, and has wanted for years, is for the FISA provision to be limited only to suspected terrorists, instead of anyone whose records the FBI thinks could be useful to a terrorism investigation. "215 should be limited to collecting information on suspected terrorists and spies," Michelle Richardson tells TPM. "That being said, the bill contains some important oversight provisions that should certainly be written into law."
For more on the Patriot Act debate, here's some good stuff from an article by John Whitehead on Recorder, entitled "Renewing the Patriot Act While America Sleeps":
The Patriot Act drove a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments–the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments–and possibly the Thirteenth and Fourteenth Amendments, as well. The Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience were considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state.
The Patriot Act justified broader domestic surveillance, the logic being that if government agents knew more about each American, they could distinguish the terrorists from law-abiding citizens–no doubt an earnest impulse shared by small-town police and federal agents alike. According to Washington Post reporter Robert O’Harrow, Jr., this was a fantasy that had “been brewing in the law enforcement world for a long time.” And 9/11 provided the government with the perfect excuse for conducting far-reaching surveillance and collecting mountains of information on even the most law-abiding citizen.
Suddenly, for the first time in American history, federal agents and police officers were authorized to conduct black bag “sneak-and-peak” searches of homes and offices and confiscate your personal property without first notifying you of their intent or their presence. The law also granted the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allowed the government access to your medical records, school records and practically every personal record about you; and allowed the government to secretly demand to see records of books or magazines you’ve checked out in any public library and Internet sites you’ve visited (at least 545 libraries received such demands in the first year following passage of the Patriot Act).
In the name of fighting terrorism, government officials were permitted to monitor religious and political institutions with no suspicion of criminal wrongdoing; prosecute librarians or keepers of any other records if they told anyone that the government had subpoenaed information related to a terror investigation; monitor conversations between attorneys and clients; search and seize Americans’ papers and effects without showing probable cause; and jail Americans indefinitely without a trial, among other things. The federal government also made liberal use of its new powers, especially through the use (and abuse) of the nefarious national security letters, which allow the FBI to demand personal customer records from Internet Service Providers, financial institutions and credit companies at the mere say-so of the government agent in charge of a local FBI office and without prior court approval.
This means that FBI agents can collect and retain vast amounts of information, much of it about the innocent activities of law-abiding Americans. And it can then retain that information indefinitely and share it with other government agencies.” Berman continues: In the absence of meaningful limitations on the FBI’s authority, agents or informants may attend religious services or political gatherings to ascertain what is being preached and who is attending. They may focus their attention on particular religious or ethnic communities. They may gather and store in their databases information about where individuals pray, what they read, and who they associate with. All with no reason to suspect criminal activity or a threat to national security. And then they may keep that information in their databases, regardless of whether it indicated any wrongdoing.

We also know that without sufficient limits and oversight, well-meaning efforts to keep the homeland safe–efforts which rely heavily on the collection and analysis of significant amounts of information about Americans–can adversely impact civil liberties. Indeed, history teaches that insufficiently checked domestic investigative powers frequently have been abused and that the burdens of this abuse most often fall upon disfavored communities and those with unpopular political views. Investigations triggered by race, ethnicity, religious belief, or political ideology may seem calibrated to address the threat we face, but instead they routinely target innocent people and groups. Beyond the harm done to individuals, such investigations invade privacy, chill religious belief, radicalize communities and, ultimately, build resistance to cooperation with law enforcement.
In fact, since 9/11, we’ve been spied on by surveillance cameras, eavesdropped on by government agents, had our belongings searched, our phones tapped, our mail opened, our email monitored, our opinions questioned, our purchases scrutinized (under the USA Patriot Act, banks are required to analyze your transactions for any patterns that raise suspicion and to see if you are connected to any objectionable people), and our activities watched. We’ve also been subjected to invasive patdowns and whole-body scans of our persons and seizures of our electronic devices in the nation’s airports (there were 6,600 such seizures in airports alone between October 2008 and July 2010). We can’t even purchase certain cold medicines at the pharmacy anymore without it being reported to the government and our names being placed on a watch list. And it’s only going to get worse.

Most Americans have been lulled into thinking that the pressing issues are voting in the next election or repealing health care. This is largely due to the media hoopla over the Tea Party, the recent elections and the health care law, and the continuous noise from television news’ talking heads. But the real issue is simply this–the freedoms in the Bill of Rights are being eviscerated, and if they are not restored and soon, freedom as we have known it in America will be lost. Thus, Congress should not renew the USA Patriot Act, nor should President Obama sign it into law. If he does so, he might just be putting the final nail in our coffin.
So lets take a step back and start connecting some dots. An undeniable pattern has emerged over the past few years that fundamentally challenges the entire premise of a "war on terror" and exposes just how ineffectual and counterproductive these policies have actually been. The reoccurring theme goes like this: Powerful interests - inside and outside of government - sell fear as way to justify the steady assault on our civil liberties, increased spending on military defense, and the growth of the surveillance state.

But here's another important piece of the puzzle that keeps popping up: more often than not the government HASN'T USED these expanded powers to actually fight terrorism (instead often to thwart anti-war protesters, bust small time drug dealers, monitor journalists, and who knows what else?) - as was promised. This begs a larger question, "Who has been targeted and why?"

As the Washington Post reported, the Justice Department concluded that on one hand, the "FBI improperly investigated some left-leaning U.S. advocacy groups after the Sept. 11, 2001, attacks...citing cases in which agents put activists on terrorist watch lists even though they were planning nonviolent civil disobedience."

We know that the FBI used the Patriot Act under the Bush Administration to target liberal groups, particularly anti-war ones during the years between 2001 and 2006 in particular. According to a recent report by the ACLU, there have been 111 incidents of illegal domestic political surveillance since 9/11 in 33 states and the District of Columbia.

The report shows that law enforcement and federal officials work closely to monitor the political activity of individuals deemed suspicious, an activity that was previously common during the Cold War. That includes protests, religious activities and other rights protected by the first amendment.

The spying could take the form of listening to phone calls, intercepting wireless communications, harassing photographers or infiltrating protest groups. Also discovered was the way in which agencies' are increasingly connected through various information sharing measures, making it more likely that information collected on an individual by a small police department could end up in an FBI or CIA database.

The report also noted how the FBI monitors peaceful protest groups and in some cases attempts to prevent protest activities. Its not hard to make the obvious connection between the increase in domestic political surveillance to an erosion of the standards of privacy and civil liberties in the wake of 9/11. The Patriot Act of course serves as exhibit A, as it authorized law enforcement to use tools domestically that were formerly restricted to hostile groups in foreign nations.

In fact, just yesterday, the Federal Bureau of Investigation reported nearly 800 violations of privacy laws and regulations to the President's Intelligence Oversight Board from 2001 to 2008, according to records obtained by the Electronic Frontier Foundation (EFF).

EFF said it has also uncovered "indications that the FBI may have committed upwards of 40,000 possible intelligence violations in the 9 years since 9/11." It said it could find no records of whether anyone was disciplined for the infractions.

The group drew its findings from about 2,500 documents it obtained under the Freedom of Information Act.

All of this of course is part of a much larger trend that paints a disturbing narrative, a narrative that points in one direction only: an increasingly intrusive surveillance state with an Executive Branch getting dangerously close to being above the law.

As Glenn Greenwald questioned last year, does such a massive surveillance apparatus actually make us safer? Greenwald says no, stating “The problem is never that the U.S. Government lacks sufficient power to engage in surveillance, interceptions, intelligence-gathering and the like. Long before 9/11 -- from the Cold War -- we have vested extraordinarily broad surveillance powers in the U.S. Government to the point that we have turned ourselves into a National Security and Surveillance State. Terrorist attacks do not happen because there are too many restrictions on the government's ability to eavesdrop and intercept communications, or because there are too many safeguards and checks. If anything, the opposite is true: the excesses of the Surveillance State -- and the steady abolition of oversights and limits -- have made detection of plots far less likely. Despite that, we have an insatiable appetite -- especially when we're frightened anew -- to vest more and more unrestricted spying and other powers in our Government, which -- like all governments -- is more than happy to accept it.”

Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)? Similarly, don't many of these government abuses constitute a form of terrorism in and of itself?

The silence surrounding the "debate" over the Patriot Act's renewal is disturbing to say the least. As quoted in Whitehead's article, an unnamed privacy advocate explained this silence well:
Many of my colleagues have just given up on the Patriot Act, either expressly or implicitly (in terms of the mindshare, energy, and resources dedicated to the issue). They don’t seem to understand or recall just how foundational this supposedly ‘emergency’ law was in setting the stage for the infringements that came later.
Sheer exhaustion plays a role, but the fact that it’s been nearly a decade means that generational change is even starting to have an impact, as have all the other irons in the fire — so many other traumatizing events have come up to distract and rightfully demand attention (torture, even broader surveillance, illegal war, assassinations), and a corrosive new so-called realism (cynicism, actually) about the politics of terrorism and the complicity of our fear-driven media and political class, combined of course with a reluctance to undermine our first black president and whatever incremental progressive achievements he can make.
We must now grapple with how to address this silence...

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