Abuses by the USA PATRIOT Act

Let us take a little trip down memory lane. At the end of this journey, I'll ask you a couple questions. You don't have to provide me with any answers; but I do want you to think about them.

(From: http://judiciary.senate.gov/testimony.cfm?id=1493&wit_id=4256)

 

TESTIMONY ON THE USA PATRIOT ACT
BEFORE THE SENATE JUDICIARY COMMITTEE
BY BOB BARR
May 10, 2005

 

. . . 

 
Prior to the USA PATRIOT Act, library and bookseller records were not covered by this power, which back then only permitted an order for the records of certain business. Now, library records are covered – as are all other records and tangible items, including membership lists of political organizations, gun purchase records, medical records, genetic information and any other document, item or record that the government contends is a “tangible thing.”

 

Section 215 also comes with a sweeping and automatic gag order, without any explicit provision for a recipient to challenge that prior restraint on First Amendment grounds or even consult with counsel. And, if certification is made that the records are sought for any intelligence or terrorism inquiry, the judge has no power under the law to challenge that certification. Finally, and crucially, the power is also unlike a grand jury subpoena because a recipient has no explicit right to move to have it quashed in court, and failure to comply with a 215 order is presumptively a serious offense.

 

Critics of this section rightly charge that its open-ended scope and lack of meaningful judicial review open the door to abuses, and I agree. At the very least, Congress should restore the “specific and articulable facts” requirement for the target of a section 215 order that connects such records to a terrorist, spy or other foreign agent. Here again, such a modest limitation, consistent with traditional Fourth Amendment principles, would pose no significant hardship to federal agents. Federal judges would, as they have for ages past, continue to approve virtually all such applications properly supported and applied for by government agents.

 

. . .

 

Apparently, the department sought and received the authority to delay notice 108 times between April 2003 and January 2005, a period of approximately 22 months. By contrast, it sought and received this authority 47 times between November 2001, when the PATRIOT Act was enacted, and April 2003, a period of about 17 months. The five-month difference in timeframe aside, these numbers clearly reveal a substantial increase in use.

 

Moreover, Chairman Specter also revealed at the April 6th Judiciary Committee hearing that 92 -- or approximately 60 percent -- of those 155 requests were granted under the broad justification that notice would have the result of “seriously jeopardizing an investigation,” rather than under the more specific criteria that notice would endanger a person’s life, imperil evidence, induce flight from prosecution or lead to witness tampering.

 

Also, as Attorney General Gonzales informed Representative Flake at an April 7th hearing of the House Judiciary Committee, six criminal delayed-notice warrants under section 213 of the PATRIOT Act were approved with an indefinite delay (just as we had feared), and one had a delay that lasted fully half a year. In addition, the statutory language that opens the door to such indefinite delay is directly contrary to the only two appellate court rulings published before the Patriot Act that evaluate secret criminal search warrants with delayed-notification authorized by the lower court. In the first such case, a circuit court held that “in this case the warrant was constitutionally defective in failing to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry. Such a time should not exceed seven days except upon a strong showing of necessity.”

 

I would also submit that this Committee is in a special position to evaluate sneak and peek warrants. The Judiciary Committee has jurisdiction over the peculiar area of law in which criminal and intelligence investigative powers can blur into one another, and where they consequently have to be carefully cabined to protect constitutional rights. I respectfully submit that the sneak and peek statute is one law that is not appropriately cabined, and is currently so broad that it resembles powers associated with foreign intelligence investigations (i.e., outside reasonable limitations for criminal powers contained in the Fourth Amendment).

 

. . .

 

Too often in our history, we have acted too quickly in the face of major national security challenges, and have severely deprived our citizens of their God-given rights under the Constitution. Worse, such deprivations have, without exception, been unnecessary to secure our country. In the post-9/11 world, we have strayed perilously close to the edge, and I fear we will fall all the way if the PATRIOT Act is not fixed. If we do, however, meet the test of history and fix the law before it can lead to another historical shame, we will have broken with the past. And we will have done so by securing our liberties and our safety in equal measure. What could be more American than that?

 

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(From: http://www.heraldnet.com/stories/05/10/24/100wir_nation001.cfm)

Records show violations in FBI secret surveillance

Published: Monday, October 24, 2005

 

WASHINGTON - The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

 

Records also indicate the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically in the wake of the Sept. 11, 2001, attacks but are largely hidden from public view.

 

The records were provided to The Washington Post by the Electronic Privacy Information Center (EPIC), an advocacy group that has sued the Justice Department for records relating to the Patriot Act.

 

David Sobel, EPIC's general counsel, said the new documents raise questions about the extent of possible misconduct in counterintelligence investigations and underscore the need for greater congressional oversight of clandestine surveillance within the United States.

 

FBI officials disagreed, saying that none of the cases has involved major violations and most amount to administrative errors. The officials also said any information obtained from improper searches or eavesdropping is quarantined and eventually destroyed.

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(From: http://www.epic.org/privacy/terrorism/usapatriot/judiciary_102405.pdf)

 

. . .

The documents reveal thirteen cases in 2002-2004 in which the FBI's Office of General Counsel investigated alleged FBI misconduct during intelligence activities, and reported these matters to the Intelligence Oversight Board (IOB). It appears from the case numbers assigned to each matter that the FBI reported to the IOB at least 153 instances of alleged misconduct occurring in 2003 alone.

 

Under Executive Order 12863. inspectors general and general counsel throughout the intelligence community must report to the IOB "intelligence activities that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive." The IOB, in turn, reports such activities to the President and Attorney General. The documents obtained by EPIC raise the troubling possibility that hundreds of allegations of unlawful investigations are reported from various agencies to the IOB each year. Yet there is no requirement that Congress is notified of these allegations or how these matters are ultimately resolved.

 

These facts suggest a need for legislation that would require the Attorney General to report to the Judiciary Committees on matters forwarded to him by the IOB, as well as the Justice Department's response (if any) to intelligence activities that have been found unlawful or contrary to Executive order or Presidential directive,

 

We believe there is particular urgency for the Committee to pursue this matter. Over the last several years, the FBI has been granted significantly expanded authority to undertake intelligence investigations in the United States. As FBI Director Robert Mueller stated in March 17, 2004 testimony before the House Appropriations Committee on the FBI's Fiscal Year 2005 Budget Request:

 

Today, our mission has changed dramatically and our budget reflects this change. . . . Approximately 44 percent of the funding is allocated to counterterrorism and counterintelligence—or about $2.2 billion and 12,466 positions. Compared to FY 2001, this represents more than double the amount of funding and equates to an 80 percent increase in the number of people devoted to the counterterrorism and counterintelligence missions.

 

One of the practical consequences of the FBI's expanded intelligence role has been the dramatic increase in the use of the secretive Foreign Intelligence Surveillance Act (FISA) to conduct searches in the United States. That law was originally enacted to address the specific problem of Soviet agents operating within the United States. However, the 2003 FISA Annual Report revealed that the Foreign Intelligence Surveillance Court had granted 1,724 applications for secret surveillance. That made 2003 the first year ever that more FISA warrants were granted than federal wiretap warrants, which are issued only under a more stringent legal standard.

 

During the oversight hearings on the PATRIOT Act, representatives of the Department of Justice repeatedly stated that there had been no abuses of PATRIOT Act authority.* The Department also noted that its inspector general had received no complaints of civil liberties violations alleging employee misconduct related to the PATRIOT Act aside from the Brandon Mayfield matter.

 

The documents released by the FBI to EPIC, however, suggest that there may be at least thirteen instances of unlawful intelligence investigations that were never disclosed to Congress. . . .

 

*For example, Attorney General Alberto Gonzales testified on April 27 that "[t]here has not been one verified case of civil liberties abuse" arising from PATRIOT Act authority. FBI Director Robert Mueller agreed: "I as well am unaware of any substantiated allegations that the government has abused its authority under the PATRIOT Act." USA PATRIOT Act of 2001: Hearing Before the Senate Select Comm. on Intelligence, 109th Cong. (Federal News Service 2005) (testimony of Alberto Gonzales, Attorney General, and Robert Mueller, FBI Director). Deputy Attorney General James B. Comey also testified on May 11, "I don't believe there have been abuses of the PATRIOT Act." The USA PATRIOT Act and Foreign Intelligence Surveillance Act: Hearing Before the House Select Comm. on Intelligence, 109th Cong. (Federal News Service 2005) (testimony of James B. Comey, Deputy Attorney General).

Here are my questions for you: Who do you think is lying? Do we now live in a Police State? Do we now have a "Secret Police Division" that essentially answers to no one, save the President? What are we, the citizens, going to do about it?