[Infowarrior] - OpEd: Feingold on Patriot Act review

[Richard Forno]

"Congress Gave the FBI Few Rules to Follow and Shouldn't be Surprised  
at the Results" Fixing the Patriot Act, Restoring the Constitution
By Sen. RUSSELL FEINGOLD

http://www.counterpunch.org/feingold09242009.html

At the end of this year, three provisions of the USA PATRIOT Act will  
sunset unless Congress acts to reauthorize them. In my view, Congress  
should take this opportunity to revisit not just those three  
provisions, but rather a broad range of surveillance laws enacted in  
recent years to assess what additional safeguards are needed.

That is why I have introduced the JUSTICE Act, S. 1686, along with  
Senator Durbin and eight other Senators. It takes a comprehensive  
approach to fixing the USA PATRIOT Act and the FISA Amendments Act,  
once and for all. It permits the government to conduct necessary  
surveillance, but within a framework of accountability and oversight.  
It ensures both that our government has the tools to keep us safe, and  
that the privacy and civil liberties of innocent Americans will be  
protected. Because as the title of this hearing suggests, we can and  
must do both. These are not mutually exclusive goals.

Indeed, the Department of Justice just last week acknowledged as much  
in a letter setting forth its views on Patriot Act reauthorization.  
The Department said: “We also are aware that Members of Congress may  
propose modifications to provide additional protection for the privacy  
of law abiding Americans. As President Obama said in his speech at the  
National Archives on May 21, 2009, ‘We are indeed at war with al Qaeda  
and its affiliates. We do need to update our institutions to deal with  
this threat. But we must do so with an abiding confidence in the rule  
of law and due process; in checks and balances and accountability.’  
Therefore, the Administration is willing to consider such ideas,  
provided that they do not undermine the effectiveness of these  
important authorities.”

I welcome the administration’s openness to potential reforms of the  
Patriot Act and look forward to working together as the  
reauthorization process moves forward this fall.

But I remain concerned that critical information about the  
implementation of the Patriot Act has not been made public –  
information that I believe would have a significant impact on the  
debate. During the debate on the Protect America Act and the FISA  
Amendments Acts in 2007 and 2008, critical legal and factual  
information remained unknown to the public and to most members of  
Congress – information that was certainly relevant to the debate and  
might even have made a difference in votes. And during the last  
Patriot Act reauthorization debate in 2005, a great deal of  
implementation information remained classified. This time around, we  
must find a way to have an open and honest debate about the nature of  
these government powers, while protecting national security secrets.

As a first step, the Justice Department’s letter made public for the  
first time that the so-called “lone wolf” authority – one of the three  
expiring provisions – has never been used. That was a good start,  
since this is a key fact as we consider whether to extend that power.  
But there also is information about the use of Section 215 orders that  
I believe Congress and the American people deserve to know. I do not  
underestimate the importance of protecting our national security  
secrets. But before we decide whether and in what form to extend these  
authorities, Congress and the American people deserve to know at least  
basic information about how they have been used. So I hope that the  
administration will consider seriously making public some additional  
basic information, particularly with respect to the use of Section 215  
orders.

There can be no question that statutory changes to our surveillance  
laws are necessary. Since the Patriot Act was first passed in 2001, we  
have learned important lessons, and perhaps the most important of all  
is that Congress cannot grant the government overly broad authorities  
and just keep its fingers crossed that they won’t be misused, or  
interpreted by aggressive executive branch lawyers in as broad a way  
as possible. Congress has the responsibility to put appropriate limits  
on government authorities – limits that allow agents to actively  
pursue criminals, terrorists and spies, but that also protect the  
privacy of innocent Americans.

This lesson was most clear in the context of National Security  
Letters. In reports issued in 2007 and 2008, the Department of Justice  
Inspector General carefully documented rampant misuse and abuse of the  
National Security Letter (NSL) authority by the FBI. The Inspector  
General found – as he put it – “widespread and serious misuse of the  
FBI’s national security letter authorities. In many instances, the  
FBI’s misuse of national security letters violated NSL statutes,  
Attorney General Guidelines, or the FBI’s own internal policies.”  
After those Inspector General reports, there can no longer be any  
doubt that granting overbroad authority leads to abuses. The FBI’s  
apparently lax attitude and in some cases grave misuse of these  
potentially very intrusive authorities is attributable in no small  
part to the USA PATRIOT Act. That flawed legislation greatly expanded  
the NSL authorities, essentially granting the FBI a blank check to  
obtain some very sensitive records about Americans, including people  
not under any suspicion of wrong-doing, without judicial approval.  
Congress gave the FBI very few rules to follow, and should not be all  
that surprised at the result.

This time around, we have the opportunity to get this right. That is  
why we should look at a range of issues and not just the three  
provisions that expire.

Russell Feingold is a United States Senator from Wisconsin.