Monday, May 23, 2011

Another "Temporary" Extension of the Patriot Act

This is becoming an annual slap in the face to the Constitution and codification of our burgeoning security state that I have termed the "Fear Industrial Complex". Yes, its Patriot Act extension time! The Senate, thanks to a deal between majority leader Harry Reid and his Republican colleagues to sidestep debate and jam the civil liberties killing legislation through, is expected to extend the Act for another 4 years.

Forget about the fact that if there's ANYTHING deserving of debate, its the Patriot Act. But what of this increasingly common procedure to abdicate, you know, democracy related responsibilities in Congress (War on Libya anyone?)?

Ironically, this is EXACTLY how the PATRIOT Act first came into existence 10 years ago. No debate, no reflection on the precedent we were about to set, and no real consideration for the pandora's box we were about to open.. Yet, here we are, again, with Congress putting its stamp of approval on such "unconstitutional greatest hits"as:

  • 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. 
  • 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.
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.

But don't take my word for it. The Electronic Frontier Foundation (EFF) has found plenty of evidence regarding FBI abuses of the PATRIOT Act. For instance, the FBI itself reported nearly 800 violations of privacy laws and regulations to the President's Intelligence Oversight Board from 2001 to 2008.

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.  

We also 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.

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 noted scholar Juan Cole noted, "The US Bill of Rights says that people have the right to privacy in their personal effects and their communications from government prying except where the police obtain a warrant from a judge. The tendency in the US for the past 40 years has been to chip away at this requirement, giving government agencies more and more unsupervised surveillance authority."

Yet, knowing all that, Congress isn't going to even have this debate in the light of day.

As I point out each year we renew this abomination, 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 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, that resistance has largely evaporated, particularly with the last elections defeat of privacy champion Russ Feingold.

To give credit where credit is due, Sen. Jeff Merkley (D-OR) did release a strong statement today lamenting the lack of debate

    Senator Jeff Merkley says he was very concerned when he heard Thursday Senate leaders would move to close debate Monday on a package extending three Patriot Act rules. Jeff Merkley: “I think it’s outrageous that there’s a proposal for a four-year extension in which the intention is to have no significant debate on the floor of the Senate, and no opportunity for amendments.” [...]

    Merkley says he isn’t sure if the extensions will pass, but notes some of his colleagues sounded unhappy about the parliamentary move used to forestall more debate.

    Jeff Merkley: “There is some chance that reaction may be strong enough to change that and turn this into a real debate. Leadership may say we have other things to get to by next Friday. My reaction is we’ve had plenty of time to have a thorough debate on the floor.”

As David Dayen lays out, in addition to Merkley, Sen. Mark Udall (D-CO) opposes the quick reauthorization without debate. He sent an email to his supporters asking for them to sign a petition calling for the reform of the Patriot Act.

    Benjamin Franklin once said that any society that would give up essential liberties to pursue security deserves neither and will lose both. Those words ring true today [...]

    But while many of the PATRIOT Act’s provisions — which I support — have made our nation safer since the devastating terrorist attacks of 9/11, there are three provisions that fail to strike the right balance between keeping us safe while protecting the privacy rights of Coloradans. Instead, these three provisions have been far too susceptible to abuse by the federal government, even in the name of keeping us safe from terrorism [...]

    These three provisions are troubling because they are ripe for abuses that involve expansive government surveillance of innocent people, even though common sense fixes and protections exist if only we were allowed to debate them.

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.

Julian Sanchez provides another aspect of the Act that should be garnering more attention, stating:

More urgent than any of these (provisions), however, is the need to review and substantially modify the statutes authorizing the Federal Bureau of Investigation to secretly demand records, without any prior court approval, using National Security Letters. Though not slated to sunset with the other three Patriot provisions, NSLs were the focus of multiple proposed legislative reforms during the 2009 reauthorization debates, and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconstitutional, and the government’s own internal audits have uncovered widespread, systematic misuse of expanded NSL powers. of NSL authority — and, indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertain constitutional status of NSLs, a sunset should be imposed along with more robust reporting and oversight requirements.

John Whitehead wrote an excellent piece a couple months ago entitled "Renewing the Patriot Act While America Sleeps". He states:

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.


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.

As Glenn Greenwald questioned last year, does such a massive surveillance apparatus actually make us safer? Greenwald says no, statingThe 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.”

Again, as I have written in response to past Patriot Act extensions: 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?"Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)?

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