In a move that could expand the police powers in the Patriot Act, the Senate Intelligence Committee will meet behind close doors to discuss, among other things, "a little-discussed provision to enlarge the FBI's ability to wiretap people who it suspects are national security threats." The bill they will discuss is called the Patriot Reauthorization Act (PAREA)
The Boston Globe reported Sunday that the provision in the bill, sponsored by committee chair Republican Senator Pat Roberts of Kansas, "would lift one of the last restrictions on special warrants the FBI can obtain through a secret court originally set up to monitor foreign spies: that the information the bureau wants must be related to international terrorism or foreign intelligence."
Instead, the FBI could use the warrants, which bypass normal constitutional safeguards, to look for evidence of unrelated crimes that it could use to get suspects off the street. The wiretap provision is one of three major additions in the draft bill, which would reauthorize the Patriot Act, the package of enhanced law enforcement powers enacted after the attacks of Sept. 11, 2001.
If the bill became law, it also would give FBI agents the power to write their own subpoenas without permission from a judge, allowing them to seize records from hotels, banks, and Internet service providers. This provision would require the FBI to make periodic reports to Congress about how often it uses that power to obtain library records, bookstore and firearms sales receipts, and medical or tax records.
CNN reported in late March that conservative and liberals groups who are normally "at each other's throats" will work together to "gut major provisions" of the current anti-terrorism law.
Gregory D. Miller, US attorney for the Northern District of Florida, writes in The Tallahassee Democrat that concern about the Patriot Act being used for non-terrorist related criminal investigations has proven unfounded.
To date, the act's delayed notice provisions have been used in less than one-fifth of 1 percent of all federal search warrants. In one of the rare but critical instances in which delayed notice was employed, the act enabled agents to secretly seize more than 30,000 pills of the hallucinogen ecstasy from a drug courier without jeopardizing the long-term investigation of the international drug organization that employed him.
That's 30,000 pills that never made it to the streets, or the nightclubs, or the college campuses for which they were destined. In the massive take-down that took place fewer than 30 days after the ecstasy seizure, investigators put that drug organization out of business, arresting more than 100 of its key members. The Patriot Act enabled law enforcement to take those drugs off our streets, without tipping off the people responsible for their distribution.
The Washington Post reports on one case where the Patriot Act was used as it was originally intended, that of former University of South Florida professor Sami al-Aria, who was indicted in 2003 on charges of "conspiracy to commit racketeering through the murder of Israelis, money laundering and other crimes."
US officials were allowed to use the FISA [Foreign Intelligence Surveillance Act] intercepts in the case because the USA Patriot Act of 2001 and a FISA appeals court decision in 2003 had torn down the long-unbreachable wall between FBI criminal investigators and intelligence personnel. The legal wall had previously prevented FBI intelligence agents from sharing any information about the FISA taps with agents pursuing criminal cases.
But Anita Ramasastry, a columnist for FindLaw.com, a legal resources website, argues that not only should some of the previous sections of the act be scrapped, but that adding some of these new wiretap sections are a direct assault on the US Constitution.
PAREA should be rejected, or substantially modified to allow review by a neutral judge (a federal judge, not an administrative judge).
The government has obtained a broad range of powers in intelligence investigations – especially against foreigners, but also against US citizens. Given the secrecy with which these investigations are conducted, their wide scope, and the lack of checks and balances, independent judicial review – requiring a factual premise and particularized suspicion for a subpoena to be authorized – are the very minimum required to safeguard our liberty.
In an editorial, The Muskegon [Michigan] Chronicle argues that even if the Act is renewed, the current Act's "Sunset Provisions" must be renewed as well.
Last week, the Senate Intelligence Committee began work -- in secret, no less -- to mark up a new Patriot Act with even tougher provisions that among other things would allow for the issuance of "administrative subpoenas" not requiring the permission of a judge who has reviewed the evidence beforehand. Minority Democrats are too weak to put up much opposition, but let's at least hope that a bipartisan majority of legislators has enough sense -- and yes, patriotism -- to tack similar sunset provisions onto this next Patriot Act.
Otherwise the "War on Terror," at least from a constitutional standpoint, is liable to go on forever. To paraphrase a line from a current movie, is this how liberty dies?
The San Francisco Chronicle is also critical of the decision to hold these hearings behind closed doors. Sen. Roberts has said in the past that he needs to hold these meetings in secret because of the sensivitity of the intelligence matters being discussed. But the Chronicle argues that a "closed-door session would allow the committee to expand a law that affects the basic freedoms of the American people without public scrutiny or debate."
In an editorial for usatoday.com, Sen. Roberts argues, however, that the Congress needs to give the FBI "all legal tools" to fight terrorism, which it will use within its constitutional limits.
Today's FBI honors the rule of law, is bound by executive orders and attorney general guidelines, and is subject to vigorous oversight by congressional committees that will monitor closely how it uses administrative subpoenas. In four years, I predict we will find again that the tool was used wisely and that allegations of abuse are not supported by facts - and Americans will be safer.
But the Detroit Free Press reports that Democratic Sen. Diane Feinstein of California, who is also on the Senate Intelligence Committee and plans to press for the hearing to be made public starting Tuesday, was skeptical of her colleague's claims. "This is a very broad power, with no check on that power. It's carte blanche for a fishing expedition."