From Campaign For Liberty:
Let the Patriot Act Expire
By Philip Giraldi
View all 33 articles by Philip Giraldi
Published 05/11/11
Printer-friendly version
Congress will soon be considering renewal of major portions of the Patriot Act. The Patriot Act is generally promoted as the principal legislative tool being used to fight international terrorism, but it played no role whatsoever in the recent killing of al-Qaeda leader Osama bin Laden. The Act is, in reality, a devastating and poorly conceived bit of legislation originally approved just after 9/11. It will soon be up for an extension in the US Senate prior to the expiration of some key elements on May 27th. President Barack Obama, who criticized it while he was a candidate but apparently has had a change of heart since that time, favors its renewal and his Attorney General Eric Holder recently endorsed its renewal. Most members of Congress, few of whom have ever read the entire act, want it renewed. The mainstream media likes the Patriot Act, one suspects, because it is difficult to fault legislation that has "Patriot" as part of its name.
There is growing suspicion, even among congressmen, that the Patriot Act just might be too damaging to civil liberties at a time when the terrorism threat appears to be receding. Senator Rand Paul led the charge in the Senate back in February that resulted in a temporary 90 day continuation of the provisions of the act that will expire this month. The Act will again be up for Senatorial approval but, unfortunately, the planned one week long open debate in front of the full Senate and under the scrutiny of the media might well be canceled due to lack of interest by Republicans and Democrats alike. It would have been the first time that has happened since 2001, when the Act first became law.
Broadly speaking, the Patriot Act was designed to make it easier for law enforcement to investigate US citizens and permanent residents by easing legal restraints on records and activities that were hitherto considered private or required a judge's order to access. The Act has enjoyed bipartisan support since 2001.
Title 2 of the Patriot Act, makes it possible to investigate any foreign suspect as part of a law enforcement effort to obtain foreign intelligence information even if there was no evidence that a crime had been committed. The difference is critical as the police previously had to have actual evidence of a crime while the new procedure permitted investigation of just about anyone who could plausibly be linked to a foreign suspect to obtain information, allowing law enforcement to conduct wide ranging fishing expeditions. The Act also lifted the old requirement that law enforcement demonstrate that the target of an approved investigation was a foreign national and a possible agent of a foreign government. Anyone linked to the inquiry, even a US citizen, could become a person of interest. This was referred to as a "lone wolf" provision and it is one of the areas of the Patriot Act that is up for renewal.
Title 2 also permitted any district court in the United States to issue surveillance orders and search warrants in connection with proposed terrorist investigations and the Act specifically included electronic communications and voicemail records as subject to the warrants. Using the warrants, the FBI is able to access from the internet service provider all records on a user, to include name, address, telephone billing records, session details, and payment information to include bank and credit card records. This feature of the Act is also up for renewal this month.
The third feature of the Act that is up for extension at the end of May is roving wiretaps, permitting law enforcement to obtain warrants that allow them to switch from one communications medium to another if they believe that the target is changing his method of communication to make monitoring him more difficult. This means that the FBI is empowered to tap multiple phones or computer lines simultaneously based on one blanket warrant. Previously law enforcement had to show cause for the tap and it was limited to the telephone or computer line specified in the request. Under Title 2 the FBI was also permitted to obtain whatever tangible public records are available to assist in an investigation. This was the so-called library clause, where library borrowing records could be accessed by the police.
The Patriot Act also incorporates sections on money laundering and the financing of terrorism. Few would argue with the money laundering provisions, but the act also includes the Financial Anti-Terrorism Act of October 17th, 2001, which permits the freezing of assets and investigation of individuals suspected of being financial or material supporters of terrorism. The definition of supporter is extremely elastic and could be construed as providing material assistance or even verbal or written support. The assets are frozen for as long as the government carries out the investigation and the government is under no obligation to proceed with any alacrity. Several cases involving Islamic charities in Northern Virginia have been dragging on since 9/11, with no resolution in sight. And "suspected" is the key word in terms of the standard of evidence, as there is no oversight or appeal to the process. The information used to make the case is secret and available only to the government.
Probably most disturbing to libertarians are the National Security Letters (NSL) authorized in Title 5 of the Act. The NSL has been described as an administrative subpoena that can be used by a number of government agencies that have investigative authority. This means in practice that they are mostly used by the FBI. The NSL is used to obtain documents and information relating to any individual or to organizations, to include employment, health, financial, and credit records. There is no requirement for probable cause and there is no judicial oversight of the process. The recipient of the NSL cannot reveal that he has received the letter to anyone and can be prosecuted if he violates that restriction. At FBI, the letters can be issued by any Special Agent in Charge of any field office, which means that the authority to approve a NSL is essentially local, is not reviewed at a higher level, and does not have to be linked to any actual terrorism case. Between 2003 and 2006, the FBI issued 200,000 National Security Letters. As of 2005, the NSLs had been used to obtain more than one million personal records, including medical histories and credit reports. A Justice Department investigation determined that most had nothing to do with terrorism.
It is undeniable that the Patriot Act infringes on constitutional rights to free speech, freedom of association, freedom from illegal search, the right to habeas corpus, prohibition of cruel and unusual punishment, and freedom from the illegal seizure of private property, but defenders of the Acts claim that the infringements are moderate, incremental, and necessary. Defenders of the Constitution would claim that any infringement is illegal and therefore unacceptable. There are also inconsistencies in terms of how the act operates. It is legal under the act to intercept and read an email communication or listen to a phone conversation but illegal to open a letter moving through the United States Postal Service. The part of the act criminalizing giving "expert advice and assistance" to a terrorist group is so broad that it would mean that someone advising the group to surrender to authorities could be arrested.
With the Patriot Act, any objection to Washington's foreign policy can be construed as an act of terrorism. We have empowered the police to read our private communications, place wiretaps into our homes and places of work, look into our finances and medical histories, and even search our houses without a warrant. We no longer have the right to associate freely and our property can be seized by the government while we are being investigated. The Patriot Act opens the door to fishing expeditions by the government that violate the rights of every American citizen. It is a law that is worthy only of a police state and everyone who cares about the constitution should unite to demand its repeal, starting with the Senate vote at the end of this month.
Copyright © 2011 Campaign for Liberty
Also by Philip Giraldi:
Guilty Until Proven Guilty 04/13/11
A Tangled Web 03/10/11
The Perils of Intervention 02/10/11
The Meaning of WikiLeaks 01/10/11
A Reasonable Response to Terrorism 12/06/10
View all 33 articles by Philip Giraldi
Let the Patriot Act Expire
By Philip Giraldi
View all 33 articles by Philip Giraldi
Published 05/11/11
Printer-friendly version
Congress will soon be considering renewal of major portions of the Patriot Act. The Patriot Act is generally promoted as the principal legislative tool being used to fight international terrorism, but it played no role whatsoever in the recent killing of al-Qaeda leader Osama bin Laden. The Act is, in reality, a devastating and poorly conceived bit of legislation originally approved just after 9/11. It will soon be up for an extension in the US Senate prior to the expiration of some key elements on May 27th. President Barack Obama, who criticized it while he was a candidate but apparently has had a change of heart since that time, favors its renewal and his Attorney General Eric Holder recently endorsed its renewal. Most members of Congress, few of whom have ever read the entire act, want it renewed. The mainstream media likes the Patriot Act, one suspects, because it is difficult to fault legislation that has "Patriot" as part of its name.
There is growing suspicion, even among congressmen, that the Patriot Act just might be too damaging to civil liberties at a time when the terrorism threat appears to be receding. Senator Rand Paul led the charge in the Senate back in February that resulted in a temporary 90 day continuation of the provisions of the act that will expire this month. The Act will again be up for Senatorial approval but, unfortunately, the planned one week long open debate in front of the full Senate and under the scrutiny of the media might well be canceled due to lack of interest by Republicans and Democrats alike. It would have been the first time that has happened since 2001, when the Act first became law.
Broadly speaking, the Patriot Act was designed to make it easier for law enforcement to investigate US citizens and permanent residents by easing legal restraints on records and activities that were hitherto considered private or required a judge's order to access. The Act has enjoyed bipartisan support since 2001.
Title 2 of the Patriot Act, makes it possible to investigate any foreign suspect as part of a law enforcement effort to obtain foreign intelligence information even if there was no evidence that a crime had been committed. The difference is critical as the police previously had to have actual evidence of a crime while the new procedure permitted investigation of just about anyone who could plausibly be linked to a foreign suspect to obtain information, allowing law enforcement to conduct wide ranging fishing expeditions. The Act also lifted the old requirement that law enforcement demonstrate that the target of an approved investigation was a foreign national and a possible agent of a foreign government. Anyone linked to the inquiry, even a US citizen, could become a person of interest. This was referred to as a "lone wolf" provision and it is one of the areas of the Patriot Act that is up for renewal.
Title 2 also permitted any district court in the United States to issue surveillance orders and search warrants in connection with proposed terrorist investigations and the Act specifically included electronic communications and voicemail records as subject to the warrants. Using the warrants, the FBI is able to access from the internet service provider all records on a user, to include name, address, telephone billing records, session details, and payment information to include bank and credit card records. This feature of the Act is also up for renewal this month.
The third feature of the Act that is up for extension at the end of May is roving wiretaps, permitting law enforcement to obtain warrants that allow them to switch from one communications medium to another if they believe that the target is changing his method of communication to make monitoring him more difficult. This means that the FBI is empowered to tap multiple phones or computer lines simultaneously based on one blanket warrant. Previously law enforcement had to show cause for the tap and it was limited to the telephone or computer line specified in the request. Under Title 2 the FBI was also permitted to obtain whatever tangible public records are available to assist in an investigation. This was the so-called library clause, where library borrowing records could be accessed by the police.
The Patriot Act also incorporates sections on money laundering and the financing of terrorism. Few would argue with the money laundering provisions, but the act also includes the Financial Anti-Terrorism Act of October 17th, 2001, which permits the freezing of assets and investigation of individuals suspected of being financial or material supporters of terrorism. The definition of supporter is extremely elastic and could be construed as providing material assistance or even verbal or written support. The assets are frozen for as long as the government carries out the investigation and the government is under no obligation to proceed with any alacrity. Several cases involving Islamic charities in Northern Virginia have been dragging on since 9/11, with no resolution in sight. And "suspected" is the key word in terms of the standard of evidence, as there is no oversight or appeal to the process. The information used to make the case is secret and available only to the government.
Probably most disturbing to libertarians are the National Security Letters (NSL) authorized in Title 5 of the Act. The NSL has been described as an administrative subpoena that can be used by a number of government agencies that have investigative authority. This means in practice that they are mostly used by the FBI. The NSL is used to obtain documents and information relating to any individual or to organizations, to include employment, health, financial, and credit records. There is no requirement for probable cause and there is no judicial oversight of the process. The recipient of the NSL cannot reveal that he has received the letter to anyone and can be prosecuted if he violates that restriction. At FBI, the letters can be issued by any Special Agent in Charge of any field office, which means that the authority to approve a NSL is essentially local, is not reviewed at a higher level, and does not have to be linked to any actual terrorism case. Between 2003 and 2006, the FBI issued 200,000 National Security Letters. As of 2005, the NSLs had been used to obtain more than one million personal records, including medical histories and credit reports. A Justice Department investigation determined that most had nothing to do with terrorism.
It is undeniable that the Patriot Act infringes on constitutional rights to free speech, freedom of association, freedom from illegal search, the right to habeas corpus, prohibition of cruel and unusual punishment, and freedom from the illegal seizure of private property, but defenders of the Acts claim that the infringements are moderate, incremental, and necessary. Defenders of the Constitution would claim that any infringement is illegal and therefore unacceptable. There are also inconsistencies in terms of how the act operates. It is legal under the act to intercept and read an email communication or listen to a phone conversation but illegal to open a letter moving through the United States Postal Service. The part of the act criminalizing giving "expert advice and assistance" to a terrorist group is so broad that it would mean that someone advising the group to surrender to authorities could be arrested.
With the Patriot Act, any objection to Washington's foreign policy can be construed as an act of terrorism. We have empowered the police to read our private communications, place wiretaps into our homes and places of work, look into our finances and medical histories, and even search our houses without a warrant. We no longer have the right to associate freely and our property can be seized by the government while we are being investigated. The Patriot Act opens the door to fishing expeditions by the government that violate the rights of every American citizen. It is a law that is worthy only of a police state and everyone who cares about the constitution should unite to demand its repeal, starting with the Senate vote at the end of this month.
Copyright © 2011 Campaign for Liberty
Also by Philip Giraldi:
Guilty Until Proven Guilty 04/13/11
A Tangled Web 03/10/11
The Perils of Intervention 02/10/11
The Meaning of WikiLeaks 01/10/11
A Reasonable Response to Terrorism 12/06/10
View all 33 articles by Philip Giraldi
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