Wednesday, February 9, 2011

Patriot Act Dealt (Temporary) Blow by House

Well here's a pleasant surprise, even if it is short lived. Believe it or not, yesterday the House blocked the bill to renew the Patriot Act - with 26 Republicans joining 122 Democrats in denying passage. Now, why do I say this is only a temporary victory? Unfortunately, because the House brought the bill to the floor under the suspension of the rules, they needed a 2/3 vote. In addition, nobody could offer amendments, and only 40 minutes were allowed for debate.

This of course is in itself troubling. What BETTER issue to have debate on then the Patriot Act?? Being how radical it is, and how unconstitutional many components of it clearly are, one would think this is ripe for debate, particularly by those in the GOP that can't say a sentence without mentioning the Constitution (which is actually a sign they don't understand it).

So it was shot down, but not by a majority. Still, I think this is something to at least take some pleasure in.

As I mentioned last week, this new version STILL contains 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.

It is true that Patrick Leahy offered a bill with some minor reforms,
including elements that the Justice Department promised to implement voluntarily. But, just as two years ago, the White House has put its weight behind the blanket extension - which happens to be the version defeated in the House today. But its not only the White House trying to undermine Leahy's modest efforts to protect privacy and civil liberties. Dianne Feinstein has engineered her own version, which will be able to bypass the Senate Judiciary Committee, chaired by Leahy, and move right to the floor.

As for the question regarding why we need more debate, and more protections, how about the report recently released in which the FBI admitted to the President’s Intelligence Oversight Board to violating the law at least 800 times on national security letters, going well beyond even the loose safeguards in the original provision. According to the report the FBI “may have violated the law or government policy as many as 3,000 times” between 2003 and 2007, according to the Justice Department Inspector General, while collecting bank, phone and credit card records using NSLs. Yet, knowing all that, the House spent a few minutes debating whether to extend the exact same authority to the FBI for another year, the Obama Administration wants this all to go away immediately, and Feinstein is undercutting Leahy.

Jon Nichols of the Nation has more on the vote,
and more from Dennis Kucinich, who's really been leading the opposition to this law since its inception:

But House Minority Leader Nancy Pelosi, D-California, led the vast majority of House Democrats in opposing any extension. In all, 122 Democrats—roughly two-thirds of the party's House caucus—voted "no" to extending surveillance authorities that the American Civil Liberties Union warns [2]  "give the government sweeping authority to spy on individuals inside the United States and, in some cases, without any suspicion of wrongdoing. All three should be allowed to expire if they are not amended to include privacy protections to protect personal information from government overreach."

Joining the Democrats in voting "no" were 26 Republicans, including Texas Congressman Ron Paul and a number of other senior Republicans with records of breaking with their party on civil liberties issues, such as Tennessee's John Duncan Jr. and South Carolina's Walter Jones Jr. Joining them were several new members of the GOP caucus, such as Illinois Congressman Randy Hultgren and Michigan Congressman Justin Amash.
"The PATRIOT Act is a destructive undermining of the Constitution," Kucinich told the House. "How about today we take a stand for the Constitution to say that all Americans should be free from unreasonable search and seizure, and to make certain that the attempt to reauthorize the Patriot Act is beat down."
Against the lobbying of the Obama administration and the determined efforts of House GOP leaders—who kept what was supposed to be a fifteen-minute discussion open for twenty-five minutes as they tried to corral the needed seven votes—Kucinich's argument carried the day [3]...“It is expected that the bill will be brought up again, but the opposition has now surfaced. I look forward to working with this new coalition to continue to rally support to defeat the PATRIOT Act."
ACLU leaders, celebrating a rare victory in the long fight against the PATRIOT Act, shared Kucinich's excitement about the prospects for blocking—or, at the very least, radically reforming—the measure [5].
“The House should be commended for refusing to rubberstamp the continuation of these provisions," declared Laura Murphy, director of the ACLU's Washington Legislative Office. "For the nearly 10 years it has been law, the over-reaching Patriot Act has been abused by law enforcement to violate innocent Americans’ privacy. We urge both the House and the Senate to keep up this momentum and continue to fight the extension of these provisions that put Americans’ privacy at risk.”
Of course, this will eventually happen, particularly because the White House and the GOP leadership support passage without amending the provisions whatsoever. There will be no committee markup, no hearings, no major deliberation. Similarly, Leahy's modest changes which 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, as I said, today represented a temporary, though a potentially meaningful defeat of the very worst version of the Patriot Act - a version given no debate or amendments. Until we can get a White House and/or the leadership in the House and Senate to actively and aggressively put an end to the Patriot Act, it will continue to be renewed in increasingly un-democratic ways.

But don't take my word for it, here's the ACLU's analysis of all that is wrong with this abomination:

On behalf of the American Civil Liberties Union, a non-partisan organization with over half a million members, countless additional activists and supporters, and 53 affiliates nationwide, we urge you to vote ‘NO’ on H.R. 514, a bill that reauthorizes three expiring provisions of the USA Patriot Act and the Intelligence Reform and Terrorism Prevention Act (IRTPA) until December 8, 2011. This bill reauthorizes and extends these laws without making common sense amendments to protect Americans‟ privacy. Because of the importance of this vote to civil liberties principles, we will be scoring this vote.

The three expiring provisions of the Patriot Act and IRTPA give the government sweeping authority to spy on individuals inside the United States and, in some cases, without any suspicion of wrongdoing. All three should be allowed to expire if they are not amended to include privacy protections to protect personal information from government overreach.

Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person‟s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or the provision should be allowed to expire.

Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called ‘lone wolf’ provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts, is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. According to government testimony, this provision has never been used and should be allowed to expire outright.

The bill also fails to amend other portions of the Patriot Act in dire need of reform, most notably those relating to the issuance and use of national security letters (NSLs). NSLs permit the government to obtain the communication, financial and credit records of anyone deemed relevant to a terrorism investigation even if that person is not suspected of unlawful behavior. Numerous Department of Justice Inspector General reports have confirmed that tens of thousands of these letters are issued every year and they are used to collect information on people two and three times removed from a terrorism suspect. NSLs also come with a nondisclosure requirement that precludes a court from determining whether the gag is necessary to protect national security. The NSL provisions should be amended so that they collect information only on suspected terrorists and the gag should be modified to permit meaningful court review for those who wish to challenge nondisclosure orders.

Instead of reauthorizing these provisions, Congress should conduct robust, public oversight of all surveillance tools and craft reforms that will better protect private communications from overbroad government surveillance. Because of the negative privacy implications of extending all of these laws, we strongly urge you to vote “no” on H.R. 514. We will track this vote and add its result to our Congressional scorecard.

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