No Sunset for Sweeping Patriot Act Powers?

by William Fisher

NEW YORK - The USA Patriot Act, rushed into law by a panicky U.S. Congress in the aftermath of the terrorist attacks of Sep. 11, 2001, gave the government broad surveillance powers to spy on innocent citizens. But it also stipulated that three of its more controversial provisions should expire next month unless reapproved by lawmakers.

And it appears that reapproval may be about to happen - evidently with a green light from the Barack Obama administration and over strong objections from human rights and civil liberties groups.

Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the committee's deliberations.

"The Senate Judiciary Committee had the opportunity to pass legislation to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed - approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act," said the American Civil Liberties Union (ACLU).

The committee's actions were driven by "short-term and political considerations", Chip Pitts, president of the Bill of Rights Defense Committee, told IPS.

The Judiciary Committee ignored "the need for a more sensible long-term, reasoned, rule-of-law approach", he said.

Now, civil libertarians are looking to the House of Representatives, where that body's Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.

There are three sections of the law due to expire next month.

The "National Security Letter (NSL)" provision

The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people.

Government reports confirm that upwards of 50,000 of these secret record demands go out each year. In response to an ACLU lawsuit known as Doe v. Holder, the Second Circuit Court of Appeal struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records.

The "Material Support" Statute

This provision criminalises providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group.

As amended by the Patriot Act and other laws since September 11, this section criminalises a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organisations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.

The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008

Last summer, Congress amended the law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and e-mails.

Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties. Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.

Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used "lone wolf" surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.

However, the proposed new legislation leaves intact the Patriot Act's so-called "material support" provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.

The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the committee chair, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.

Asked by IPS to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said "the secret and hypocritical lobbying by the Obama administration against reforms - while publicly stating receptiveness to them - was undoubtedly a huge if lamentable factor."

He also cited the recent arrests of Najibullah Zazi and others, noting that Leahy said that in light of these incidents, "this is no time to weaken or undermine the tools that law enforcement relies on to protect America."

Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.

"In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach," Pitts told IPS.

"In the eight years since passage of the original Patriot Act, it's become clear that the escalating political competition to appear tough on terror - and avoid being accused of being 'soft on terror' - brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed," he added.

"The persistent myths and claims that the Patriot Act hasn't been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11," Pitts told IPS.

Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.

Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the "lone wolf" provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.

However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL.

In the second, the government would have to notify suspects of "sneak and peek" searches within seven days instead of the 30 days currently required by the statute.

"Sneak and peek" searches allow the government to search a home without notifying the resident immediately.