THE PROGRESSIVE REVIEW – September 28, 2009

Battle Looms Over the Patriot Act
By CHARLIE SAVAGE
The New York Times

WASHINGTON — As Congress prepares to consider extending
crucial provisions of the USA Patriot Act, civil liberties
groups and some Democratic lawmakers are gearing up to
press for sweeping changes to surveillance laws.

Both the House and the Senate are set to hold their first
committee hearings this week on whether to reauthorize
three sections of the Patriot Act that expire at the end
of this year. The provisions expanded the power of the
F.B.I. to seize records and to eavesdrop on phone calls
in the course of a counterterrorism investigation.

Laying down a marker ahead of those hearings, a group of
senators who support greater privacy protections filed a
bill on Thursday that would impose new safeguards on the
Patriot Act while tightening restrictions on other
surveillance policies. The measure is co-sponsored by
nine Democrats and an independent.

Days before, the Obama administration called on Congress
to reauthorize the three expiring Patriot Act provisions
in a letter from Ronald Weich, assistant attorney general
for legislative affairs. At the same time, he expressed
a cautious open mind about imposing new surveillance
restrictions as part of the legislative package.

“We are aware that members of Congress may propose
modifications to provide additional protection for the
privacy of law abiding Americans,” Mr. Weich wrote,
adding that “the administration is willing to consider
such ideas, provided that they do not undermine the
effectiveness of these important authorities.”

One of the witnesses Democrats have invited to testify at
both hearings is Suzanne E. Spaulding, who has worked for
lawmakers of both parties as a former top staffer on the
House and Senate Intelligence committees. Mrs. Spaulding
said she would urge Congress to tighten restrictions on
when the F.B.I. could use the Patriot Act powers.

The rapid build-up of domestic intelligence authorities
after the Sept. 11 attacks, she said, had overlooked
“important safeguards,” which has resulted “in a greater
likelihood at a minimum of the government mistakenly
intruding into the privacy of innocent Americans, and
at worst having a greater capability of abusing these
authorities.”

Still, she acknowledged, the public record contains scant
evidence that the F.B.I. has abused its powers under the
three expiring Patriot Act sections. And it remains to be
seen whether a majority in Congress will welcome under-
taking a potentially heated debate over national security
in the midst of already wrenching efforts to overhaul the
nation’s health insurance system.

Republicans invited Kenneth L. Wainstein, a former
assistant attorney general for national security for
the Bush administration, to testify at both Patriot Act
hearings.

“We have to be careful not to limit these tools to the
point that they are no longer useful in fast-moving threat
investigations,” Mr. Wainstein said. “There is an important
place for oversight of national security tools, and that
oversight is being exercised by Congress and by the federal
judges on the Foreign Intelligence Surveillance Court.”

The first such provision allows investigators to get
“roving wiretap” court orders authorizing them to follow
a target who switches phone numbers or phone companies,
rather than having to apply for a new warrant each time.

From 2004 to 2009, the Federal Bureau of Investigation
applied for such an order about 140 times, Robert S.
Mueller, the F.B.I. director, said at a Senate Judiciary
Committee hearing last week.

The second such provision allows the F.B.I. to get a court
order to seize “any tangible things” deemed relevant to a
terrorism investigation — like a business’s customer
records, a diary or a computer.

From 2004 to 2009, the bureau used that authority more than
250 times, Mr. Mueller said.

The final provision set to expire is called the “lone
wolf” provision. It allows the F.B.I. to get a court
order to wiretap a terrorism suspect who is not connected
to any foreign terrorist group or foreign government.

Mr. Mueller said this authority had never been used, but
the bureau still wanted Congress to extend it.

Several other lawmakers are expected to file their own
bills addressing the Patriot Act and related surveillance
issues in the next several weeks.

Many of the proposals under discussion involve small word-
ing shifts whose impact can be difficult to understand, in
part because the statutes are extremely technical and some
govern technology that is classified.

But in general, civil libertarians and some Democrats have
called for changes that would require stronger evidence of
meaningful links between a terrorism suspect and the person
whom investigators are targeting.

In the same way, some are proposing to use any Patriot Act
extension bill to tighten when the F.B.I. may use “national
security letters” — administrative subpoenas that allow
counterterrorism agents to seize business records without
obtaining permission from a judge. Agents use the device
tens of thousands of times each year.

The Patriot Act section that expanded the F.B.I.’s power to
issue those letters is not expiring, but they have become
particularly controversial because the Justice Department’s
inspector general issued two reports finding that F.B.I.
agents frequently misused the device to obtain bank, credit
card and telephone records.

Finally, some civil libertarians want lawmakers to revisit
a June 2008 law in which Congress granted immunity from
civil lawsuits to telecommunications companies that assist-
ed President George W. Bush’s program of surveillance with-
out warrants, and that adjusted federal statutes to bring
them into alignment with a form of that program.

As a senator, Mr. Obama voted for that bill, infuriating
civil libertarians.

The bill filed Sept. 17 — which is championed in particular
by two Democratic senators, Russ Feingold of Wisconsin and
Richard J. Durbin of Illinois — would repeal the immunity
provision.

The measure would also tighten statutory restrictions to
ban the “bulk collection” of phone calls coming into the
United States from overseas. Some security specialists
say that they doubt the National Security Agency has that
capability today, but that it could become feasible as
classified technology advances.

“Every single member of Congress wants to give our law
enforcement and intelligence officials the tools they need
to keep Americans safe,” Mr. Feingold said in a statement
when filing the bill. “But with the Patriot Act up for
reauthorization, we should take this opportunity to fix
the flaws in our surveillance laws once and for all.”

But changes to the hard-fought 2008 legislation on the
Foreign Intelligence Surveillance Act, or FISA, could
provoke fierce opposition from Senate conservatives.
Senator Christopher S. Bond, Republican of Missouri and
vice chairman of the Senate Intelligence Committee,
strongly objected to revisiting that law.

“Our terror fighters need the tools and legal authorities
to track terror suspects quickly, before they strike,”
Mr. Bond said. “Unfortunately, this bill would render
our critical warning system useless by unraveling the
bipartisan FISA provisions Congress passed last year.”

————————————————————