NEW YORK - With the health care
debate preoccupying the mainstream media, it has gone virtually
unreported that the Barack Obama administration is quietly supporting
renewal of provisions of the George W. Bush-era USA Patriot Act that
civil libertarians say infringe on basic freedoms.
And it is reportedly doing so over the objections of some prominent Democrats.
a panicky Congress passed the act 45 days after the terrorist attacks
of Sep. 11, 2001, three contentious parts of the law were scheduled to
expire at the end of next month, and opponents of these sections have
been pushing Congress to substitute new provisions with substantially
strengthened civil liberties protections.
But with the apparent
approval of the Obama White House and a number of Republicans – and
over the objections of liberal Senate Democrats including Russ Feingold
of Wisconsin and Dick Durbin of Illinois – the Senate Judiciary
Committee has voted to extend the three provisions with only minor
Those provisions would leave unaltered the power of the
Federal Bureau of Investigation (FBI) to seize records and to eavesdrop
on phone calls and e-mail in the course of counterterrorism
The parts of the act due to expire on Dec. 31 deal with:
National Security Letters (NSLs)
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.
The 'Material Support' Statute
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 Sep. 11, this section criminalises a wide array of
activities, regardless of whether they actually or intentionally
further terrorist goals or organisations.
FISA Amendments Act of 2008
past summer, Congress passed a law that permits the government to
conduct warrantless and suspicion-less dragnet collection of U.S.
residents' international telephone calls and e-mails.
IPS why committee chairman Senator Patrick Leahy of Vermont and other
Democrats chose to make only minor changes, Chip Pitts, president of
the Bill of Rights Defence Committee, referred to "the secret and
hypocritical lobbying by the Obama administration against reforms –
while publicly stating receptiveness to them." White House pressure, he
speculated, "was undoubtedly a huge if lamentable factor".
He added that some committee members were cautious because of the recent arrests of Najibullah Zazi and others.
, a citizen of Afghanistan and a legal U.S. resident, was arrested in
September as part of a group accused of planning to carry out acts of
terrorism against the U.S. Zazi is said by the FBI to have attended
courses and received instruction on weapons and explosives at an al
Qaeda training camp in Pakistan.
Leahy acknowledged that, in
light of these incidents, "This is no time to weaken or undermine the
tools that law enforcement relies on to protect America."
told IPS, "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."
"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.
In contrast to the Senate, the
House of Representatives Judiciary Committee approved a version of the
legislation containing several significant reforms. In a 16-10
party-line vote, the committee's version curbs some of the government's
controversial surveillance powers.
The Patriot Act, passed by
a landslide after the 9/11 terrorist attacks to provide law enforcement
and intelligence agencies additional powers to thwart terrorist
activities, was reauthorised in 2005.
The legislation has been
criticised by many from across the ideological spectrum as a threat to
civil liberties, privacy and democratic traditions. Sections of the
original act have been ruled unconstitutional, with certain provisions
violating protected rights.
Judiciary Chair John Conyers, a
Michigan Democrat, said the goal of the new legislation was to "craft a
law that preserves both our national security and our national values".
proposed new legislation would permit the so-called "lone wolf"
provision to sunset. This authority removed the requirement that an
individual needed to be an agent of a foreign power to be placed under
surveillance by intelligence officials and permitted surveillance of
individuals with a much lower evidentiary threshold than allowed under
criminal surveillance procedures.
It was intended to allow the
surveillance of individuals believed to be doing the bidding of foreign
governments or terrorist organisations, even when the evidence of that
connection was lacking.
The Justice Department maintains that
the "lone wolf" authority is necessary, even though there is no
evidence that it has been used. Its opponents believe that existing
authorities are sufficient to achieve the goals of the lone wolf
provision while more effectively protecting the rights of innocent
The proposed new House legislation would also restrict
the use of national security letters. According to a Congressional
Research Service report, "National security letters (NSL) are roughly
comparable to administrative subpoenas. Intelligence agencies issue
them for intelligence gathering purposes to telephone companies,
Internet service providers, consumer credit reporting agencies, banks,
and other financial institutions, directing the recipients to turn over
certain customer records and similar information."
law, intelligence agencies have few restrictions on the use of NSLs,
and in numerous cases, have abused the authority. An FBI inspector
general report in 2007 "found that the FBI used NSLs in violation of
applicable NSL statutes, Attorney General Guidelines, and internal FBI
policies". The reform provisions seek to create greater judicial
scrutiny of NSL use.
The bill approved in the Senate contains
much more modest reforms. It would retain the lone wolf provision, and
is, in general, much more in line with the wishes of the
administration. Should both bills pass and go into conference to be
reconciled, it is unclear which approach would prevail.
and Senate versions still need to be voted on by each body separately
and then reconciled into a single bill to send to the president for
Pitts told IPS, "President Obama's flip-flop on
Patriot Act issues does as much damage as did his flip-flop on the FISA
Amendments Act and telecom immunity last year. But it's imperative that
we fight, while we still can, to comprehensively reinsert requirements
for fact-based, individualised suspicion, checks and balances, and
meaningful judicial review prior to government intrusions."
a report on the Patriot Act, the American Civil Liberties Union (ACLU)
said, "More than seven years after its implementation there is little
evidence that the Patriot Act has been effective in making America more
secure from terrorists. However, there are many unfortunate examples
that the government abused these authorities in ways that both violate
the rights of innocent people and squander precious security resources."