[Infowarrior] - DUH...Lawmakers Cave to FBI in Patriot Act Debate

[Richard Forno]

Like we didn't see this one coming a mile away......   --rf


Lawmakers Cave to FBI in Patriot Act Debate
	• By David Kravets
	• October 1, 2009  |
	• 4:55 pm  |
http://www.wired.com/threatlevel/2009/10/patriot-act-debate/
	•
Powerful Senate leaders on Thursday bowed to FBI concerns that adding  
privacy protections to an expiring provision of the Patriot Act could  
jeopardize “ongoing” terror investigations.


In an about-face, Sen. Patrick Leahy removed privacy protections in a  
key Patriot Act provision up for renewal before the Senate Judiciary  
Committee, which the Democrat of Vermont chairs.

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.

“All of us are mindful that threats against American safety are real  
and continuing,” Leahy said at the hearing . “I’m trying to introduce  
balances on both sides.”


Sen. Dianne Feinstein sides with FBI on Patriot Act.

He was discussing one of the most controversial provisions of the  
Patriot Act — 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.

Just last week, however, Leahy touted an amendment that required a  
connection to terrorism. Under the Leahy-Feinstein amendment, the  
standard would allow secret-court warrants to be issued if the  
information sought pertains to an “authorized investigation.” That’s  
roughly the same language already in the Patriot Act.

Feinstein, also chairwoman of the Senate Select Committee on  
Intelligence which often is briefed on key classified activities, said  
the last-minute change was needed to keep America safe.

“The biggest investigation since 9/11 is ongoing,”  Feinstein said.  
”My concern was that nothing we do here interfere with an  
investigation that is going on.”

Two weeks ago, the authorities said they cracked an al-Qaida cell that  
was planning a terror attack in the United States. At least three were  
arrested, including an airport shuttle driver who the authorities said  
had handwritten notes on how to build bombs.

Democratic senators Benjamin Cardin (Maryland), Sheldon Whitehouse  
(Rhode Island) and Edward Kaufman (Delaware), also had their names  
attached to Thursday’s Leahy-Feinstein amendment.

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.

An amendment (.pdf) by Sen. Richard Durbin (D-Illinois) to repeal the  
Leahy-Feinstein amendment was swiftly defeated on a 4-15 vote.

“[Section] 215 orders without any connection to a suspected terrorist  
or spy, this could lead obviously to a government fishing expedition,”  
Durbin argued.

Sen. Jeff Sessions (R-Alabama) countered that Durbin’s amendment is  
unworthy of consideration. “I think it will impact the operation of  
what we are doing,” he said.

Feinstein added: “I think Senator Sessions is correct.”

She said the FBI does not support Durbin’s proposal. “It would end  
several classified and critical investigations,” she said.

A saving grace to the Leahy-Feinstein amendment is a provision that  
library records are subject to a higher standard, that they must be  
relevant to a terror investigation to be subject to a Section 215  
warrant.

The government reported that as many as 220 warrants under Section 215  
had been authorized since 2004. The government has also said there’s a  
classified government operation that relies on those orders.

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.

“It has been suggested that roving wiretaps can be used against  
anyone. The roving wiretap authority can only be used after a court  
order has been obtained with probable cause that the target is an  
agent of a foreign power,” Feinstein said. “There are no known abuses  
of this authority.”

The Judiciary Committee is expected to vote on a final package next  
Thursday.

The Leahy-Feinstein plan also requires publication of audits,  
including how many times the government has used the Patriot Act’s  
provisions, including the number of targets. Much of the government’s  
public reporting on the topic has been voluntary, and very little is  
known about how often each power has been used and why.

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.

The American Civil Liberties Union said Leahy and Feinstein had  
offered a “watered-down” version.

“The bill, as it stands now, falls far short of including civil  
liberties protections shown to be necessary by the results of  
oversight and audits of the Patriot Act that have been made public to  
date,” said Michael Macleod-Ball, the acting director of the ACLU’s  
legislative office in Washington.

The Electronic Frontier Foundation brought the telco litigation. Here  
is the take on Thursday’s developments by Kevin Bankston, an EFF  
privacy attorney.