[Infowarrior] - Battle Looms Over the Patriot Act

[Richard Forno]

September 20, 2009
Battle Looms Over the Patriot Act
By CHARLIE SAVAGE
http://www.nytimes.com/2009/09/20/us/politics/20patriot.html?hpw=&pagewanted=print

WASHINGTON — As Congress prepares to consider extending crucial  
provisions of the USA Patriot Act, civil liberties groups and some  
Democratic lawmakers are gearing up to press for sweeping changes to  
surveillance laws.

Both the House and the Senate are set to hold their first committee  
hearings this week on whether to reauthorize three sections of the  
Patriot Act that expire at the end of this year. The provisions  
expanded the power of the F.B.I. to seize records and to eavesdrop on  
phone calls in the course of a counterterrorism investigation.

Laying down a marker ahead of those hearings, a group of senators who  
support greater privacy protections filed a bill on Thursday that  
would impose new safeguards on the Patriot Act while tightening  
restrictions on other surveillance policies. The measure is co- 
sponsored by nine Democrats and an independent.

Days before, the Obama administration called on Congress to  
reauthorize the three expiring Patriot Act provisions in a letter from  
Ronald Weich, assistant attorney general for legislative affairs. At  
the same time, he expressed a cautious open mind about imposing new  
surveillance restrictions as part of the legislative package.

“We are aware that members of Congress may propose modifications to  
provide additional protection for the privacy of law abiding  
Americans,” Mr. Weich wrote, adding that “the administration is  
willing to consider such ideas, provided that they do not undermine  
the effectiveness of these important authorities.”

One of the witnesses Democrats have invited to testify at both  
hearings is Suzanne E. Spaulding, who has worked for lawmakers of both  
parties as a former top staffer on the House and Senate Intelligence  
committees. Mrs. Spaulding said she would urge Congress to tighten  
restrictions on when the F.B.I. could use the Patriot Act powers.

The rapid build-up of domestic intelligence authorities after the  
Sept. 11 attacks, she said, had overlooked “important safeguards,”  
which has resulted “in a greater likelihood at a minimum of the  
government mistakenly intruding into the privacy of innocent  
Americans, and at worst having a greater capability of abusing these  
authorities.”

Still, she acknowledged, the public record contains scant evidence  
that the F.B.I. has abused its powers under the three expiring Patriot  
Act sections. And it remains to be seen whether a majority in Congress  
will welcome undertaking a potentially heated debate over national  
security in the midst of already wrenching efforts to overhaul the  
nation’s health insurance system.

Republicans invited Kenneth L. Wainstein, a former assistant attorney  
general for national security for the Bush administration, to testify  
at both Patriot Act hearings.

“We have to be careful not to limit these tools to the point that they  
are no longer useful in fast-moving threat investigations,” Mr.  
Wainstein said. “There is an important place for oversight of national  
security tools, and that oversight is being exercised by Congress and  
by the federal judges on the Foreign Intelligence Surveillance Court.”

The first such provision allows investigators to get “roving wiretap”  
court orders authorizing them to follow a target who switches phone  
numbers or phone companies, rather than having to apply for a new  
warrant each time.

 From 2004 to 2009, the Federal Bureau of Investigation applied for  
such an order about 140 times, Robert S. Mueller, the F.B.I. director,  
said at a Senate Judiciary Committee hearing last week.

The second such provision allows the F.B.I. to get a court order to  
seize “any tangible things” deemed relevant to a terrorism  
investigation — like a business’s customer records, a diary or a  
computer.

 From 2004 to 2009, the bureau used that authority more than 250  
times, Mr. Mueller said.

The final provision set to expire is called the “lone wolf” provision.  
It allows the F.B.I. to get a court order to wiretap a terrorism  
suspect who is not connected to any foreign terrorist group or foreign  
government.

Mr. Mueller said this authority had never been used, but the bureau  
still wanted Congress to extend it.

Several other lawmakers are expected to file their own bills  
addressing the Patriot Act and related surveillance issues in the next  
several weeks.

Many of the proposals under discussion involve small wording shifts  
whose impact can be difficult to understand, in part because the  
statutes are extremely technical and some govern technology that is  
classified.

But in general, civil libertarians and some Democrats have called for  
changes that would require stronger evidence of meaningful links  
between a terrorism suspect and the person whom investigators are  
targeting.

In the same way, some are proposing to use any Patriot Act extension  
bill to tighten when the F.B.I. may use “national security letters” —  
administrative subpoenas that allow counterterrorism agents to seize  
business records without obtaining permission from a judge. Agents use  
the device tens of thousands of times each year.

The Patriot Act section that expanded the F.B.I.’s power to issue  
those letters is not expiring, but they have become particularly  
controversial because the Justice Department’s inspector general  
issued two reports finding that F.B.I. agents frequently misused the  
device to obtain bank, credit card and telephone records.

Finally, some civil libertarians want lawmakers to revisit a June 2008  
law in which Congress granted immunity from civil lawsuits to  
telecommunications companies that assisted President George W. Bush’s  
program of surveillance without warrants, and that adjusted federal  
statutes to bring them into alignment with a form of that program.

As a senator, Mr. Obama voted for that bill, infuriating civil  
libertarians.

The bill filed Sept. 17 — which is championed in particular by two  
Democratic senators, Russ Feingold of Wisconsin and Richard J. Durbin  
of Illinois — would repeal the immunity provision.

The measure would also tighten statutory restrictions to ban the “bulk  
collection” of phone calls coming into the United States from  
overseas. Some security specialists say that they doubt the national  
security agency has that capability today, but that it could become  
feasible as classified technology advances.

“Every single member of Congress wants to give our law enforcement and  
intelligence officials the tools they need to keep Americans safe,”  
Mr. Feingold said in a statement when filing the bill. “But with the  
Patriot Act up for reauthorization, we should take this opportunity to  
fix the flaws in our surveillance laws once and for all.”

But changes to the hard-fought 2008 legislation on the Foreign  
Intelligence Surveillance Act, or FISA, could provoke fierce  
opposition from Senate conservatives. Senator Christopher S. Bond,  
Republican of Missouri and vice chairman of the Senate Intelligence  
Committee, strongly objected to revisiting that law.

“Our terror fighters need the tools and legal authorities to track  
terror suspects quickly, before they strike,” Mr. Bond said.  
“Unfortunately, this bill would render our critical warning system  
useless by unraveling the bipartisan FISA provisions Congress passed  
last year.”