The current president appears to be taking the same stance as the former by supporting a renewal of the Patriot Act.
The Obama administration has told Congress it supports renewing three provisions of the Patriot Act due to expire at year’s end, measures making it easier for the government to spy within the United States.
The three provisions due to expire which Obama supports extending are:
- A secret court, known as the FISA court, may grant "roving wiretaps" without the government identifying the target. Generally, the authorities must assert that the target is an agent of a foreign power and/or a suspected terrorist. The government said Tuesday that 22 such warrants — which allow the monitoring of any communication device — have been granted annually.
- The FISA court may grant warrants for "business records," from banking to library to medical records. Generally, the government must assert that the records are relevant to foreign intelligence gathering and/or a terrorism investigation. The government said Tuesday that 220 of these warrants had been granted between 2004 and 2007. It said 2004 was the first year those powers were used.
- A so-called "lone wolf" provision, enacted in 2004, allows FISA court warrants for the electronic monitoring of an individual even without showing that the person is an agent of a foreign power or a suspected terrorist. The government said Tuesday it has never invoked that provision, but said it wants to keep the authority to do so.
Civil rights groups oppose renewing all three provisions. Michelle Richardson, the ACLU’s legislative counsel, had this to say:
"The justification for FISA and these lower standards and letting it operate in secret was all about terrorist groups and foreign governments, that they posed a unique threat other than the normal criminal element. This lone wolf provision undercuts that justification."
An internal DOJ audit has found widespread abuse of the Patriot Act, which will be debated at hearings scheduled next week.
The Justice Department inspector general issued blistering audits in 2007 and 2008, finding, for instance, that FBI agents had used demands for information known as national security letters in many cases where they were not authorized and had employed other tools called exigent letters to quickly obtain data without proper follow-up.
Chairmen of the House and Senate Judiciary Committees scheduled hearings on the reauthorization of the expiring provisions in the Patriot Act for next week. And Sens. Russell Feingold (D-Wis.) and Richard J. Durbin (D-Ill.), who raised strong objections to the problems in the previous administration, said Tuesday that they will introduce a bill that would enhance privacy safeguards.
"We must take this opportunity to get it right, once and for all," they said in a joint statement.
Several civil liberties groups are exhorting Congress to use the expiration to begin debate on an array of domestic surveillance issues. One priority is national security letters, which require disclosure of sensitive information by banks, credit card companies, and telephone and Internet service providers. No judge signs off on these, and recipients are usually barred from talking about the letters.
Released last year, the documentary Washington, You’re Fired breaks down pieces of legislation including the Patriot Act that have collectively dismantled the U.S. Bill of Rights under the guise of keeping Americans safe.
A long list of legitimate concerns have been raised over the Patriot Act including the violation of the 1st and 4th amendments.
- Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.
- Violates the First Amendment's guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.
- Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
- Violates the Fourth Amendmentby failing to provide notice - even after the fact - to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.
The issues go beyond that of surveillance. The Act:
- Puts CIA back in business of spying on Americans. The Patriot Act gives the Director of Central Intelligence the power to identify domestic intelligence requirements. That opens the door to the same abuses that took place in the 1970s and before, when the CIA engaged in widespread spying on protest groups and other Americans.
- Creates a new crime of "domestic terrorism." The Patriot Act transforms protesters into terrorists if they engage in conduct that "involves acts dangerous to human life" to "influence the policy of a government by intimidation or coercion." How long will it be before an ambitious or politically motivated prosecutor uses the statute to charge members of controversial activist groups like Operation Rescue or Greenpeace with terrorism? Under the Patriot Act, providing lodging or assistance to such "terrorists" exposes a person to surveillance or prosecution. Furthermore, the law gives the attorney general and the secretary of state the power to detain or deport any non-citizen who belongs to or donates money to one of these broadly defined "domestic terrorist" groups.
- Allows for the indefinite detention of non-citizens. The Patriot Act gives the attorney general unprecedented new power to determine the fate of immigrants. The attorney general can order detention based on a certification that he or she has "reasonable grounds to believe" a non-citizen endangers national security. Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial.
Update (h/t realityworld): The ACLU issued a press release yesterday:
"We are very encouraged to learn that the Obama administration has stated a willingness to discuss reforming the deeply flawed provisions in the Patriot Act, though we are disappointed at its support for the reauthorization of the three expiring provisions," said Michael Macleod-Ball, Acting Director of the American Civil Liberties Union Washington Legislative Office. "Though there may be some value to these provisions, they – like many other Patriot Act provisions – are written much too broadly and have already proven themselves to be problematic in the hands of law enforcement. The privacy rights of all Americans will continue to be at risk if we continue to let these statutes remain as they are."
...The ACLU has urged Congress to take the opportunity presented by the expiration of some Patriot Act provisions and use it to revisit other problematic sections of the law, as well as other changes made to surveillance laws since 2001. Specifically, the ACLU is asking that Congress:
- Narrow the scope of the NSL authority, adding judicial oversight to all NSL requests;
- Reform the overly broad material support statute;
- Revisit the changes made to the Foreign Intelligence Surveillance Act last year that gave the government sweeping and overbroad new surveillance power;
- Narrow the recent expansion of authorities given to FBI agents by the revamped Attorney General Guidelines that allow agents to conduct physical surveillance without suspicion;
- Expand oversight mechanisms such as audits by inspectors general and public disclosure requirements related to the Patriot Act and statutes that allow for surveillance of Americans.
"Over the last eight years, Congress has allowed numerous expansions of executive authority that have worked in tandem to infringe upon Americans’ rights," said Michelle Richardson, ACLU Legislative Counsel. "It’s time for our lawmakers to take apart the massive surveillance mechanism it has built and examine each piece to develop wiser policies."