Protecting Us from Our Freedoms
Congress Set to Renew Patriot Act Spy Provisions
By Tom Burghardt
URL of this article: www.globalresearch.ca/index.php?context=va&aid=24926
Global Research, May 23, 2011
As
night follows day, you can count on Congress to serve as loyal servants
and willing accomplices of our out-of-control National Security State.
Last week, in another shameless demonstration of
congressional "bipartisanship," Senate Majority Leader Harry Reid
(D-NV), Senate Minority leader Mitch McConnell (R-KY) and House Speaker
John Boehner (R-OH) forged a filthy backroom deal that reauthorizes
insidious surveillance provisions of the Patriot Act for an additional
four years.
"Like clockwork," the ACLU reports, Reid and McConnell "introduced a bill, S. 1038, that will extend the provisions until June 1, 2015." As of this writing, the text of that measure has yet to be published.
And, like a faint echo from the past when the Patriot Act
was signed into law nearly a decade ago in the wake of the 9/11
provocation and the anthrax attacks, the ACLU tells us that "the Senate
begins its debate on Monday with votes possible that same night."
But why not forego a vote altogether. After all, with the
White House "skipping a legal deadline to seek congressional
authorization of the military action in Libya" under the War Powers Act,
"few on the Hill are objecting," the Associated Press reports.
Why not extend congressional "courtesy" to the White House
over demands that their illegal spying on Americans continue
indefinitely "as long as consultations with Congress continue"?
Consensus by congressional Democrats and Republicans over extending the provisions, the World Socialist Web Site
reports, "meets the demands of the Obama administration and the Justice
Department for a 'clean' extension, that is, one that does not make any
concessions to concerns over the infringement of civil liberties,
particularly in relation to the authorization to seize the records of
libraries and other institutions."
"The idea," the Associated Press informs us, "is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government." (emphasis added)
While most of the surveillance powers handed the security
apparat were permanent, three controversial provisions had expiration
dates attached to the law due to the potential for serious civil rights
abuses. Such suspicions were certainly warranted as dozens of reports by
Congress and the Justice Department, media investigations and Freedom
of Information Act and other lawsuits subsequently disclosed.
The provisions set for renewal include the following:
• The "roving wiretap" provision grants the FBI authority
to obtain wiretaps from the secret Foreign Intelligence Surveillance
Court (FISC) under color of the Foreign Intelligence Surveillance Act
and its bastard stepchild, the FISA Amendments Act, which granted
retroactive immunity to the government's telecommunications' partners.
This section of the law allows the Bureau to spy on anyone of "interest"
to the FBI during the course of a "national security" investigation,
without identifying a specific target to be surveilled or which
communication medium will be tapped. Anyone caught in the FBI's
surveillance dragnet can themselves come under scrutiny, even if
they were not named in the original warrant. Insidiously, under the
"roving wiretap" provision, even if a warrant is executed by a judge in
one jurisdiction, it can be made valid anywhere in the United States,
solely on the say-so of the FBI. Essentially, this amounts to the
issuance of a blank warrant that further marginalizes the Fourth
Amendment's explicit requirement that warrants are only issued
"particularly describing the place to be searched."
• Section 215, the so-called "business records" provision,
allows FISC warrants for virtually any type of record or "tangible
thing:" banking and financial statements, credit card purchases, travel
itineraries, cell phone bills, medical histories, you name it, without
government snoops having to declare that the information they seek has
any connection whatsoever to a terrorism, espionage or "national
security" investigation. The government does not have to demonstrate
"probable cause." Government officials need only certify to a judge,
without providing evidence or proof, that the search meets the statute's
overly-broad requirements and the court has been stripped of its
authority to reject the state's application. Surveillance orders under
Section 215 can even be based on a person's protected First Amendment
activities: the books they read, web sites searched or articles they
have published. In other words, exercising free speech under the
Constitution can become the basis for examining personal records. Third
parties served with such sweeping orders are prohibited from disclosing
the search to anyone. In fact, with built-in gag orders forbidding
disclosure subjects may never know they have be scrutinized by federal
authorities, thereby undercutting their ability to challenge
illegitimate searches.
• The "lone wolf" provision, a particularly onerous and
intrusive investigative device allows the federal government to spy on
individuals not connected to a terrorist organization but who may share
ideological affinities with groups deemed suspect by the secret state.
The definition of who may be a "lone wolf" is so vague that it greatly
expands the category of individuals who may be monitored by the security
apparat.
After Congress passed several earlier extensions, the
three provisions were set to "sunset" on February 28, 2011. But with the
Obama administration and the FBI insisting that no new civil liberties
protections be added that would undercut their domestic spying powers, a
90-day temporary extension was approved earlier this year and is now
set to expire on May 27.
This temporary extension followed an embarrassing loss in
early February by the House Republican leadership who had failed to win a
two-thirds majority passage of the proposal which barred amendments. In
fact, 26 newly-elected Republican members, including those
self-identified with the so-called "Tea Party" caucus, joined 122
Democrats in opposition and defeated the bill.
While Attorney General Eric Holder and Director of
National Intelligence James Clapper have urged Congress to extend the
provisions, permanently if possible or for an extended period if not,
because they allege short-term extensions have a deleterious effect on
"counterterrorism investigations" and "increase the uncertainties borne
by our intelligence and law enforcement agencies in carrying out their
missions." Such mendacious claims however, are not borne out by the
facts.
Indeed, the Department of Justice's own Office of the Inspector General's (OIG)
2008 report found that "[t]he evidence showed no instance where the
information obtained from a Section 215 order described in the body of
the report resulted in a major investigative development."
True enough as far as it goes, but such snooping provided
an unprecedented view of the comings and goings of citizens now subjects
of scattershot data-mining, dossier building and ginned-up federal
prosecutions.
In fact, the OIG
demonstrated conclusively that widespread abuses by the FBI in their
issuance of constitution-shredding National Security Letters, handed out
without probable cause and attached with built-in secret gag orders,
have been used by the Bureau to target innocent Americans.
While Barack Obama promised to curtail the worst abuses of
the previous administration when he assumed office in January 2009, the
Justice Department reported there has been a huge increase in domestic spying during the first two years of his administration.
As Antifascist Calling
reported earlier this month, according to figures supplied by the
Justice Department "in 2010, the FBI made 24,287 NSL requests (excluding
requests for subscriber information only) for information concerning
United States persons. These sought information pertaining to 14,212
different United States persons." Additionally, the FBI made 96
applications to the rubber-stamp FISC court in 2010 on 215 orders, a
four-fold increase over 2009.
None of this should come as a shock to readers. As I have
pointed out many times, the Obama administration has not simply extended
the previous regime's assault on civil liberties and political rights
but has greatly accelerated the downward spiral towards a presidential dictatorship lorded-over by the Pentagon and the national security apparat.
Justice Department Stonewall Continues
Moves to renew the Patriot Act's spy provisions follow
closely on the heels of administration demands to expand the scope of
National Security Letters. As The Washington Post
reported last summer, the White House "is seeking to make it easier for
the FBI to compel companies to turn over records of an individual's
Internet activity without a court order if agents deem the information
relevant to a terrorism or intelligence investigation."
"The administration," the Post disclosed, "wants to
add just four words--'electronic communication transactional records'--
to a list of items that the law says the FBI may demand without a
judge's approval."
"Government lawyers," the Post averred, "say this
category of information includes the addresses to which an Internet user
sends e-mail; the times and dates e-mail was sent and received; and
possibly a user's browser history."
Additionally, the White House is demanding that the manufacturers of electronic devices such as iPhones and Blackberries, as The New York Times
revealed last fall, make their products "technically capable of
complying if served with a wiretap order. The mandate would include
being able to intercept and unscramble encrypted messages." In other
words, the state is demanding that government-mandated backdoors be
built into the existing architecture of the internet in order to further
facilitate driftnet spying.
Meanwhile, Obama's Justice Department continues to
stonewall Congress and privacy advocates "demanding the release of a
secret legal memo used to justify FBI access to Americans' telephone
records without any legal process or oversight."
The Electronic Frontier Foundation (EFF) disclosed that the secret state satrapy that brought us COINTELPRO and employed Al-Qaeda triple agent Ali Mohamed
as a "confidential informant," refuses to tell us what that authority
is or how their abusive power-grab squares with rights guaranteed by the
Constitution.
"A report released last year by the DOJ's Office of the Inspector General," EFF attorneys write, "revealed how the FBI, in defending its past violations of the Electronic Privacy Communications Act (ECPA), had come up with a new legal argument to justify secret, unchecked access to private telephone records." The heavily-redacted report revealed that the "Office of the Legal Counsel (OLC) had issued a legal opinion agreeing with the FBI's theory."
"The decision not to release the memo," McClatchy Newspapers
reported last week, "is noteworthy because the Obama administration--in
particular the Office of Legal Counsel--has sought to portray itself as
more open than the Bush administration was."
"By turning down the foundation's request for a copy," journalist Marisa Taylor writes, "the department is ensuring that its legal arguments in support of the FBI's controversial and discredited efforts to obtain telephone records will be kept secret."
"Even officials within the Justice Department itself are
concerned that the FBI's secret legal theory jeopardizes privacy and
government accountability, especially considering the FBI's demonstrated
history of abusing surveillance law," averred EFF senior staff attorney
Kevin Bankston.
"The Justice Department has said it can't release the document for national security reasons," McClatchy noted, "but it hasn't elaborated on that assertion. At the same time, the department and the FBI have refused to comment on the legal position itself."
According to published reports, "the bureau devised an
informal system of requesting the records from three telecommunications
firms to create what one agent called a 'phone database on steroids'
that included names, addresses, length of service and billing
information."
The OIG later concluded, Taylor writes, "that the FBI and
employees of the telecom companies treated Americans' telephone records
in such an informal and cavalier way that in some cases the bureau
abused its authority."
Last year the Inspector General's report asserted that
"the OLC agreed with the FBI that under certain circumstances (word or
words redacted) allows the FBI to ask for and obtain these records on a
voluntary basis from the providers, without legal process or a
qualifying emergency."
That report
"A Review of the Federal Bureau of Investigation's Use of Exigent
Letters and Other Informal Requests for Telephone Records," revealed
widespread abuses by the Bureau and their telecom partners.
So-called "exigent" or emergency letters were used by the
FBI to illegally obtain the phone records of thousands of Americans.
According to an earlier report by EFF,
"while we had known since 2007 that the FBI improperly sought phone
records by falsely asserting emergency circumstances, the report shows
the situation inside the FBI's Communications Analysis Unit (CAU)
degenerated even further, sometimes replacing legal process with sticky
notes."
Senior staff attorney Kurt Opsahl wrote at the time that
"employees of three telecoms," since identified as AT&T, Verizon and
MCI, "worked directly out of the CAU office, right next to their FBI
colleagues."
According to the Inspector General's report, Opsahl
averred, "even exigent letters became too much work: an FBI analyst
explained that 'it's not practical to give the [exigent letter] for
every number that comes in.' Instead, the telecoms would provide phone
records pursuant to verbal requests and even post-it notes with a phone
number stuck on the carrier reps' workstations."
As Salon
columnist Glenn Greenwald writes, "the way a republic is supposed to
function is that there is transparency for those who wield public power
and privacy for private citizens."
However, "the National Security State has reversed that
dynamic completely, so that the Government (comprised of the consortium
of public agencies and their private-sector 'partners') knows virtually
everything about what citizens do, but citizens know virtually nothing
about what they do (which is why WikiLeaks specifically and
whistleblowers generally, as one of the very few remaining instruments
for subverting that wall of secrecy, are so threatening to them)."
"Fortified by always-growing secrecy weapons," Greenwald
avers, "everything they do is secret--including even the 'laws' they
secretly invent to authorize their actions--while everything you do is
open to inspection, surveillance and monitoring."
"This is what the Surveillance State, at its core, is
designed to achieve," Greenwald cautions, "the destruction of privacy
for individual citizens and an impenetrable wall of secrecy for those
with unlimited surveillance power."
As this filthy system continues to implode amidst an orgy
of financial and political corruption that would make a Roman emperor
blush, the capitalist oligarchy is hell-bent on shielding themselves
from any meaningful oversight or accountability, thus ensuring that the
secret state's war on democracy itself continues.
Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. In addition to publishing in Covert Action Quarterly and Global Research,
an independent research and media group of writers, scholars,
journalists and activists based in Montreal, he is a Contributing Editor
with Cyrano's Journal Today. His articles can be read on Dissident Voice, The Intelligence Daily, Pacific Free Press, Uncommon Thought Journal, and the whistleblowing website WikiLeaks. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press and has contributed to the new book from Global Research, The Global Economic Crisis: The Great Depression of the XXI Century.
