In two letters sent to Congress today, the Obama Department of Justice announced its support for reauthorization of three expiring provisions of the 2001 Patriot Act and its willingness to consider civil liberties amendments that do not diminish the effectiveness of the expiring provisions. Its openness to amendments is a good sign, and we look forward to working with Congress and the Administration on inserting checks and balances on surveillance authority.
Unless Congress acts by December 31, the Patriot Act “library records provision” (Section 215), its provision authorizing roving intelligence wiretaps (Section 206), and a provision of a related intelligence law that permits intelligence surveillance of “lone wolves” who have no ties to foreign terrorist organizations, will all expire. The December 31 deadline will likely prompt Congressional action this fall. Both the Senate and House Judiciary Committees have announced Patriot Act hearings this week, and Senators Feingold and Durbin are seeking support for Patriot Act reform legislation they intend to introduce soon.
Today’s DOJ letters also shed light on how the expiring Patriot Act provisions are being used. They disclosed for the first time (to our knowledge) how often the “lone wolf” surveillance authority has been used to obtain a FISA wiretap order: not once. The previous administration had claimed for years that disclosure of this information would endanger national security. This openness is a welcome development that will inform the Congressional debate.
The more important question, though, is whether the Administration will support amendments to Patriot Act National Security Letter authority, which is exercised without judicial authorization, has been challenged successfully on constitutional grounds, and which has been abused according to the DOJ’s own Inspector General. NSL’s are simple form documents used secretly tens of thousands of times every year to obtain sensitive personal information held by banks, credit companies, telephone carriers, ISPs, travel agencies, casinos, hotels, pawn shops, and even the U.S. Postal Service. They are so secretive that, with limited exceptions, people who disclose that they have received an NSL risk a prison sentence.
Willie Sutton, the bank robber, once said that he robbed banks “… because that’s where the money is.” Likewise, Congress should start its Patriot reforms with NSLs, because that’s where the abuses are.
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