Obama administration to seek extension of Patriot Act spy powers

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Obama administration to seek extension of Patriot Act spy powers
By Patrick Martin
17 September 2009

In a letter from the Justice Department to the Senate Judiciary
Committee, the Obama administration has gone on record for the first
time supporting the extension of key provisions the USA Patriot Act,
including the notorious provision that gives the federal government
the power to subpoena library records of any individual.

Several provisions of the Patriot Act, legislation adopted in the
immediate aftermath of the 9/11 attacks that grants sweeping
surveillance powers to US intelligence agencies, are scheduled to
expire December 31, unless renewed by Congress. The House and Senate
judiciary committees have scheduled hearings next week on the proposed
reauthorizations.

In a letter to Senator Patrick Leahy of Vermont, chairman of the
Senate panel, sent Monday and reported in the press Wednesday,
Assistant Attorney General Ronald Weich argues for reauthorization of
three expiring sections of the Patriot Act:

#

Section 206, which provides for roving surveillance of targets who
take evasive measures like using throw-away cell phones. In such
cases, US intelligence agencies can monitor any telecommunications
device that might be used by the suspect, without being compelled to
specify the number in advance or get a warrant.
#

Section 215, dubbed by civil liberties groups the “library provision,”
which allows federal agents to obtain business, medical, library and
other records simply by presenting a written demand, called a national
security letter, to the organization maintaining the records. This
provision has been used 220 times over the past eight years, Justice
Department officials said, but it is not clear whether a single letter
to a large corporation, like AT&T or Verizon, could be used to make
repeated demands for information. The national security letters must
be approved by a secret Foreign Intelligence Surveillance Court, which
almost never rejects such surveillance requests.
#

The third section has been nickname the “Lone Wolf” provision, since
it authorizes intelligence gathering against any non-citizen,
regardless of whether the individual is suspected of being linked to a
foreign government or terrorist organization. The Obama administration
claims that the provision has never been actually used, but that the
power needs to be held in reserve in case of need.

Assistant Attorney General Weich claims in his letter to Leahy that
the roving wiretap provision has been used only 20 times. But last
March, in testimony before Congress, FBI Director Robert S. Mueller
said that his agency alone had used roving wiretaps in terrorism
investigations a total of 147 times since 2001.

The discrepancy only underscores the lack of credibility of all
declarations from the spy agencies about their secret surveillance
tactics. In practice, the US intelligence apparatus (as well as the
Pentagon) conduct their operations without any oversight or
accountability, with the complicity of their supposed watchdogs in the
congressional intelligence committees.

Section 215 is the most expansive of the three sections, since it
allows the FBI and other agencies to demand electronic records of any
business, as well as “any tangible things” like bank and credit card
statements, as well as medical and mental health records, on any
individual.

The Obama administration letter explicitly defends the record of the
Bush administration in exercising surveillance powers under Section
215. Weich writes:

“At the time of the USA PATRIOT Act, there was concern that the FBI
would exploit the broad scope of the business records authority to
collect sensitive personal information on constitutionally protected
activities, such as the use of public libraries. This simply has not
occurred, even in the environment of heightened terrorist threat
activity.”

The assistant attorney general then argues that the good behavior of
the Bush administration justifies an extension of the “library” provision:

“Based upon this operational experience, we believe that the FISA
business records authority should be reauthorized. There will continue
to be instances in which FBI investigators need to obtain
transactional information that does not fall within the scope of
authorities relating to national security letters and are operating in
an environment that precludes the use of less secure criminal
authorities.”

The reaction of congressional Democrats to the proposed extension of
Patriot Act powers has been overwhelmingly favorable. In a statement
issued Wednesday, Senate Judiciary Chairman Leahy said, “I am pleased
that the Justice Department has signaled its willingness to work with
Congress in addressing the expiring provisions of the USA PATRIOT Act.
It is important that Congress and the executive branch work together
to ensure that we protect both our national security and our civil
liberties.”

Senate Majority Whip Richard Durbin of Illinois and liberal Senator
Russell Feingold of Wisconsin issued a joint statement favorably
contrasting the Obama administration’s willingness to consult with
Congress to the Bush administration’s simple assertion of executive
powers. The two Democrats are introducing a bill to provide a fig leaf
for the reauthorization of the Patriot Act by supposedly tightening
the legal standard for obtaining national security letters, including
requiring the government to show some “nexus” to terrorism. The two
introduced similar legislation previously, with the support of
then-Senator Barack Obama.

The Durbin-Feingold bill would repeal the legal immunity given to
telecommunications companies that collaborated with illegal government
spying. Obama voted last year in favor of the legislation that granted
the telecoms immunity, and his administration strongly opposes any repeal.

The American Civil Liberties Union took essentially the same position
as the Senate liberals, calling the administration position on Patriot
Act reauthorization “a mixed bag,” while hailing its willingness to
work with Congress as “definitely a sea change from what we’ve seen in
the past.”

On the same day as the Justice Department letter on the Patriot Act,
the Obama administration filed an 85-page legal document with the US
Circuit Court of Appeals for the District of Columbia arguing that
prisoners at the US-run prison at Bagram, near Kabul, Afghanistan,
should not have access to US courts. A lower federal court ruled that
prisoners seized in other countries and taken to Afghanistan by the US
government can challenge their detention in US courts through habeas
corpus, like the prisoners at Guantánamo Bay.

While Obama has publicly vowed to close Guantánamo Bay by next
January, only a handful of the nearly 250 prisoners have been moved to
other facilities or released, and the CIA and military are building up
Bagram as an even larger facility for interrogation and imprisonment
without trial. There are an estimated 600 detainees now at Bagram, an
unknown number of them non-Afghans brought into the country on CIA and
military planes.

http://www.wsws.org/articles/2009/sep2009/patr-s17.shtml

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