Senators Gird for Battle Over Expiring Patriot Act

In the panic after 9/11, Congress immediately threw aside the civil liberties that we lectured other nations to adopt and created the USA Patriot Act. The Act has been periodically amended and extended, most recently by
President Obama in 2011 for four years. But, now, it is about to expire on June 1.

The deadline has set off a scramble that pits an odd assortment of House Speaker John Boehner, the White House, libertarian Tea Party elements and most Democrats against Senate Majority Leader Mitch McConnell and acolytes such as Arkansas' Tom Cotton. The alliance of expedience wants the law replaced. The hardliners led by McConnell want the Patriot Act extended unchanged, yet again.

The Patriot Act provoked angered controversy long before Edward Snowden's explosive revelations two years ago that the National Security Agency (NSA) had gone far beyond what the Act authorized by collecting and storing the phone call records of every American for years.

Drawing the most fire was Section 215's re-write of 1978's Foreign Intelligence Surveillance Act (FISA). It authorized the FBI, with a judge's approval, to confiscate "any tangible things (including books, records, papers, documents, and other items)", i.e., virtually anything the Bureau decided might be useful. These "business records" could be taken from a United States "person", a term that legally applies to corporations and organizations and not just individuals, which freed the FBI to subpoena entire databases of hospitals, businesses and government departments as well as reader lists of bookstores and libraries.

That libraries could be subject to the law was particularly endangering to civil liberties. If meant that the FBI could troll the records of who had checked out certain books, DVDs, etc. So if curious you were to check out a book about international terrorism, a knock on your door could result in removal of all your personal papers, tax records, bank statements, and your computer’s hard drive. You are then forbidden by Section 215 to disclose to "any other person" that this home invasion has occurred, or that you are the subject of an FBI investigation — not even to your lawyer or a court, which means you are denied seeking any form of help or any legal recourse. (In defiance, a library posted a sign at the front desk that said, "The FBI has not yet come to this library" and in small print underneath, "Pay close attention to whether this sign is no longer here").

The subpoenas took the form of "national security letters" which the FBI could issue on its own once a Section 215 "investigation" was authorized. There is a truism that if a power is given to authority, it will be abused. Sure enough, under the Patriot Act the FBI overused "NSL"s, issuing tens of thousands each year without having to get a judge’s approval. FBI chief Robert Mueller had to go before Congress in 2007 to apologize for the agency’s out of control targeting of the public.

Ron Wyden (D-Or), a member of the Senate Select Committee on Intelligence, has for years tried to tip off the American public to the government’s abusive use of the Act, but is constrained by secrecy laws. One of 10 senators to vote against re-authorization of the Patriot Act in 2011, Wyden said at the time,

“I believe many members of Congress who have voted on this issue would be stunned to know how the Patriot Act is being interpreted and applied. The fact is that anyone can read the plain text of the Patriot Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified”.

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When out'd by Snowden, the NSA claimed that the authorization for its secret collecting of telephone "metadata" derived from Section 215. The claim was preposterous on its face. Nowhere can one find in "books, records, papers, documents, and other items" — which sound like stuff found in the desk drawers of someone's den — the faintest suggestion that what was intended by Congress was the number, date, time and duration of billions of Americans' phone calls from 2001 until the present. Moreover, the statute permits the taking of items "for an investigation". Clearly that means a specific target suspected of terrorism or aiding terrorists, and does not define the hundreds of millions of Americans who made phone calls.

It took two years for a court to agree. In a case brought by the American Civil Liberties Union (ACLU), A three-judge panel of the Second U.S. Court of Appeals in New York ruled in May that the NSA program is illegal. No law permits it. The statute the government claims underpin the NSA's actions do not support "anything approaching the breadth of the sweeping surveillance at issue here. The sheer volume of information sought is staggering”. The text of Section 215 "cannot bear the weight the government asks us to assign to it", the judges wrote.

Odious as civil libertarians find the Orwellian-named Patriot Act, Congress certainly didn't intend their law to entitle the NSA to run amok. In a letter to Attorney General Eric Holder, Rep. James Sensenbrenner (R-Wi) wrote, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

That is plainly true in the text of the statute which“contemplates the specificity of a particular investigation — not the general counterterrorism intelligence efforts of the United States Government”, the court's opinion says.

The USA Freedom Act ends NSA bulk collection of phone calls. In a resounding vote of 338 to 88 the House has already passed the bill that would replace the USA Patriot Act, and its match awaits in the Senate. NSA and others will still be able to track phone calls, but both House and Senate versions would leave phone records with the telecomm companies.

Those companies don't want the job, don't want its liability, even though they normally retain phone call records for 18 months. But if forced to take it on, they want to be paid. And why not? The cost would be a fraction of the wasteful duplication of transferring and storing years of data at specially built NSA facilities such as the recently completed massive complex at Bluffdale, Utah.

Further changes made by USA Freedom are modest. Penalties were made more severe for rendering material support to a terrorist individual or group. Intelligence agencies would be allowed 72 hours without a warrant to track suspected terrorists after they enter the country.

This time access to phone records would require clearance from the FISA Court upon application that there is a “reasonable, articulable suspicion” that a subject is associated with international terrorism".

But the proposal that the public be represented by an advocate at the FISA Court was struck down, disappointing civil libertarians and inspiring their cynicism, as it means that only the government gets to make its case for why a target should be investigated. Instead, a panel of experts from outside will advise the Court's judges, a supposed remedy that can only draw snickers. Bulk collection of overseas calls would proceed untouched.

Mitch McConnell calls this system "cumbersome" for parking the phone data with the phone companies. When he says "Section 215 helps us find a needle in a haystack" clearly he wants to keep the whole of NSA's haystack, never mind its illegality.

In a Wall Street Journal opinion piece, Michael Mukasey, former Attorney General under George W Bush, describes

"a Rube Goldberg procedure that would have the data stored and searched by the telephone companies (whose computers can be penetrated and whose employees have neither the security clearance nor the training of NSA staff)… The government, under Mr. Obama’s plan, would be obliged to scurry to court for permission to examine the data, and then to each telephone company in turn".

We've asked in earlier articles, doesn't the Journal have editors? Why was this given space?

McConnell's and Mukasey's comments show an abysmal lack of understanding of how computer communications systems work. Phone companies wouldn't do the searching, their employees would not be involved, and, yes, their computers can be penetrated — by NSA, armed with a FISA Court order that unlocks the special communication channel into the phone company's database for the extraction of the call records of a single target phone number and no more, and within milliseconds, then reaches into other phone companies' data for numbers calling or called by the target's phone. That Mukasey cites a cartoonist who died in 1970 suggest he may be picturing the government ringing doorbells as how they go about getting data when he says "scurry[ing] to each telephone company".

Obama, who got no further than a Blackberry and just opened a Twitter account, doesn't show much greater savvy. He wants to create “an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data”, said a White House spokesperson. After all this time he hasn't caught on to how it can be done.

McConnell evidently never got word that a panel appointed by Obama found that NSA's years of collecting everything had been of negligible value. Nor did the Journal's editorial writer, who wishfully presumed that "the NSA continued to analyze metadata…because these details provide intelligence that is useful for uncovering plots, preventing attacks and otherwise safeguarding the country". In fact, the NSA cannot point to any evidence that a terrorist has been unearthed or an attack has been thwarted by the collection of all this data.

That shouldn't surprise. In December of 2005, the New York Times broke the story that, months after the 9/11 attacks, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States”. Officially anyway, that was limited to international phone and e-mail traffic, but that certainly tipped off the nether world that Big Brother is watching.

Then in May of 2006, USA Today dropped a still bigger bombshell: “The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth...The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom are not suspected of any crime”.

Over two years ago — before Snowden — we reported in this article on William Binney, an NSA alumnus who had worked on a precursor of the NSA spying, and who had concluded that "the NSA decided not to bother with the filtering protocols...but rather to simply collect everything — every e-mail, every cell and landline phone call, every credit card billing record, Facebook post, Twitter tweet and Google search of everyone in the country".

What sensible terrorist would use anything other than a burner cell phone?

Yet Senate Intelligence Committee Chairman Richard Burr (R-NC) is unable to come to this simple realization. "I think people are reacting to a program they don't know", is Burr's myopia. And there's McConnell refusing to back down, with pit bull Tom Cotton leading the campaign for a permanent surveillance state — you know, to protect our freedoms.

Facing them is an alliance of conservatives and liberals. Senator Rand Paul (R-Ky) wrote in Time magazine, ““The sacrifice of our personal liberty for security is and will forever be a false choice. I refuse to relinquish our constitutional rights to opportunistic and overreaching politicians”. He is joined by arch conservative Ted Cruz and arch liberal Ron Wyden. As authors of the Senate's version of USA Freedom, Patrick Leahy (D-Vt) and Mike Lee (R-Ut) can be expected to filibuster to block McConnell.

Only days remain.