Kelley B. Vlahos 10/06/09

The Democrats want to change the name of the PATRIOT Act to the JUSTICE Act.

That’s the easy part — exchanging one Orwellian branding for another — much like earlier this year, when the new Obama administration insisted the government wasn’t waging a Global War on Terrorism, but an “Overseas Contingency Operation.”

Save for the name, there hasn’t been one major transformation in the way the federal government is executing the Long War (the recent helicopter gunship execution of a suspected al-Qaeda terrorist in Somalia in September was completely in step with the old GWOT). And seeing how key Democrats are slowly caving on some of the most promising reforms to the PATRIOT Act in three years, it’s becoming clear the JUSTICE Act won’t be much of a metamorphosis, either.

President Obama, who as an Illinois state senator in 2003 called the PATRIOT Act “shoddy and dangerous” and pledged to replace it with a “new, carefully crafted” set of “limited” tools once in Washington, has been mum on where he stands now, as three provisions are set to expire and at least two other controversial measures are being debated in Congress right now.

In fact, his administration has coyly signaled that aside from being open to reasonable “modifications,” it would be happy if the whole bit were reauthorized without the drama. Though the American Civil Liberties Union — the loyal vanguard of the reform fight — calls this tossed bone “encouraging,” there is no masking its regret over what could have been the best opportunity yet to reverse nearly a decade of depreciating civil liberties.

“There is no doubt that there is a big difference between the former administration and the present administration. There’s willingness to at least talk about these issues. But when push comes to shove, they have gotten to the point where they are protecting the aggregation of power in the executive branch that occurred in the Bush administration, by and large,” said Michael Macleod-Ball, acting director of the ACLU’s legislative office, in a recent interview.

As for what seems to be the tone of the Democrat-controlled Congress today, Macleod-Ball said it “doesn’t have any more interest in curtailing those powers than the Republican Congress had in curtailing the Bush administration’s powers.”

Of course, you could have seen this coming down Pennsylvania Avenue like a holiday parade. Obama voted for the reauthorization of the PATRIOT Act as a U.S. senator in 2006. His positions on issues like counter-terrorism already calibrated for a presidential run, Obama said there were enough “modest” improvements to the final legislation to support it.

But the reauthorization also made 14 of the 16 expiring measures in the bill permanent — including the controversial use of national security letters, which allow federal agents to demand a wide range of personal information, from financial records to e-mail communications, without judicial review, and to impose gag orders on their targets and third parties from which sensitive information is being sought.

Plus, when President Bush finally signed the bill in early 2006, he added one of his famous “signing statements,” charging that his administration would comply with the new audit requirements, “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the executive, or the performance of the executive’s constitutional duties.”

And let’s not forget that Obama voted in 2008 for warrantless wiretaps and immunity for telecom companies that gave up their subscribers’ personal phone and Internet records to federal agents on demand. As a new president, he officially backed elements of the Bush warrantless wiretaps and telecom immunity in court.

At the end of this year, the two remaining temporary provisions of the PATRIOT Act will sunset: Section 206, the counter-terror “roving wiretap” that allows the Feds to tap any communication device of a target without having to specify who or what they are targeting, and Section 215, the measure that allows the government to grab “any tangible thing” — with accompanying gag orders — including library records and other personal information with a secret FISA (Foreign Intelligence Surveillance Act) court order. Also expiring is the so-called “lone wolf” provision of the related Intelligence Reform and Terrorism Prevention Act (IRTPA), which allows the government to obtain secret FISA court orders against individuals who are not tied to any terrorist group or organization, but who might be suspected of terrorism.

Sen. Russell Feingold (D-Wisc.), who fought valiantly against the 2006 reauthorization bill, joined with several other progressive senators on Sept. 17 to introduce a bill focused on “the problems with surveillance laws that threaten the rights and liberties of American citizens.” The proposal calls for the reauthorization of the expiring provisions with ambitious revisions, including tougher standards for warrants and notification and better judicial review of all surveillance orders in the PATRIOT Act, including NSLs and the gags that restrict targets from talking about their cases or the circumstances under which they can appeal.

That bill was watered down by a proposal offered by Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) a week later, and then by another, weaker bill by Leahy and Sen. Dianne Feinstein (D-Calif.) a week after that. That was the starting point for debate during the Oct. 1 committee markup.

“It’s very, very frustrating, extremely frustrating,” said Macleod-Ball. “We had this nice bill from Sen. Feingold… it had a lot of nice changes to it, then Leahy introduced his watered-down version. It had made some tweaks. The first thing they do [during markup] is they accept a further watered-down bill as the base bill — a very limited set of reforms. Now we are left in the position of having to defend a further watered-down version of a bill that was already watered down.”

PATRIOT Act Lacks Patriotic Opposition

The reformers are in a weak position because, frankly, their position is weak, or at least it is perceived as weak. As a result, outrage is in short supply, and therefore lawmakers don’t feel compelled to take a stand and risk being labeled “soft on terror.” Others simply insist that draconian surveillance powers will keep the country safe (the recent arrests of suspected would-be domestic terrorist Najibullah Zazi and the Somali-Americans headed into the embrace of al-Shabaab are supposed to prove this point).

The key to lighting a fire under this thing is proof the PATRIOT Act is being abused by federal authorities, putting the liberty of law-abiding individuals at risk. So far, thanks to a “cloak of secrecy” and a lack of data beyond anecdotal complaints and lower-court rulings against specific PATRIOT Act provisions, it has been difficult to build that case effectively.

“Unfortunately, when the expiring provisions came up for review in 2005, there was very little in the public record for the Congress to evaluate,” said Mike German, policy counsel for the ACLU, in a statement [.pdf] to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on Sept. 22. “[The FBI] repeatedly claimed there had been no ’substantiated’ allegations of abuse. Of course, the lack of substantiation was not due to a lack of abuse, but rather to a cloak of secrecy that surrounded the government’s use of these authorities, which was duly enforced through constitutional gag orders.”

Although flawed, the 2006 reauthorization bill included additional auditing of PATRIOT Act programs. New statistics via Justice Department inspector general (IG) reports have since trickled in, and it’s not pretty.

For one, the Feds requested 49,425 national security letters in the year 2006 alone. In 2004, it requested 56,507. Compare that to 8,500 in 2000. According to the ACLU, these statistics understate the number of actual requests “because the FBI did not keep proper records … and the audit revealed a significant undercounting of NSL requests.” No reliable data exists for 2001 and 2002.

The IG found that agents repeatedly ignored the requirements for using NSLs and had actually used them to collect personal information against individuals “two or three times removed” from the subjects of FBI investigations. Twenty-two percent of the audited files contained unreported “legal violations,” and FBI supervisors used hundreds of “exigent letters,” pressing telecoms to give up telephone records without NSLs by falsely claiming emergencies, according to a 2007 report [.pdf].

An IG audit a year later [.pdf] on the same subject found that high-ranking members of the FBI, including an assistant director, issued 11 illegal “blanket NSLs” seeking data on 3,860 personal phone numbers, in addition to other misuse of the NSLs. “The FBI’s gross mismanagement of its NSL authorities risks security as much as it risks the privacy of innocent persons,” charged German in his fact-packed ACLU testimony [.pdf] last month, pointing out that according to the 2008 audit, the FBI could not locate information for at least 532 NSL requests issued from the field and 70 requests issued from headquarters. That information just disappeared.

Meanwhile, under the PATRIOT Act, the types of financial institutions required to file “suspicious activity” reports — which include detailed personal and account information to be turned over to the FBI and the Department of the Treasury — has expanded. The number of these reports reached 1.25 million in 2007, up from 163,184 in 2000.

There has been lots of “suspicious activity,” but according to the numbers analyzed by the Transactional Records Access Clearinghouse, FBI prosecutions of international terrorism cases dropped steadily from 355 in 2002 to 34 in 2008. Out of the cases opened by the FBI in 2006, the Department of Justice declined to prosecute 87 percent of them. In fact, the DOJ has declined to prosecute no less than 77 percent of the FBI’s international terrorism cases since 2003. Yet the Feds keep all of the personal information collected in these cases “forever,” says the ACLU.

“Once information is obtained in response to a national security letter, it is indefinitely retained and retrievable by the many authorized personnel who have access to various FBI databases,” testified Lisa Graves [.pdf], executive director for the Center for Media and Democracy, on Sept. 23. “How many of the people subject to the [NSL requests] are innocent? We do not know for certain, but we do know that the government conducts only a couple dozen international terrorism prosecutions per year.”

She also pointed out that the FBI now has over 1 billion records in its Investigative Data Warehouse, which was only established five years ago. That’s more records than the Library of Congress. The point is, thanks to the “cloak of secrecy,” we can never be sure how those records got there, what percentage were ill-gotten and illegal, and what percentage were obtained legitimately — or what the FBI and every other ancillary federal department with access were doing with them.

It would seem the time is ripe for a much broader movement against these abuses, considering the proliferation of neo-patriots taking to the streets for modern-day tea parties against overreaching government and the threat of tyranny. Perhaps once the abuses are more fully known, it will give these revolutionaries an even better reason to dump their tea and start holding officials to account — beginning with the president, who as an ambitious candidate once called for serious reform, not just a name change.