How Patriotic is the Patriot Act?

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

When the Patriot Act was signed into law back in 2001, there was significant discussion about and distrust in the broad powers granted to the FBI and other intelligence gathering agencies. I won’t go into the uproar that ensued back then, but I do want to discuss the latest events pertaining to the infamous Section 215 of the Patriot Act.  Section 215 of the Patriot Act is the section that has been dubbed as the “business records” provision of the Act.  In the last few days, two United States Senators reconfirmed their concern over the possible misuse of the broad powers granted to the government in Section 215.  Senator Ron Wyden and Senator Mark Udall have made public their recent letter to Attorney General Holder expressing their grave concerns on just how Section 215 is being interpreted and used to spy on Americans.

“It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or “FISA Court”) has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.  We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.

As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society — in which the government derives its power from the consent of the people — citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law.”  ACLU  The full text of the letter can be found here.

What is amazing to me is not that the government is spying on us, but that they have no qualms in spying on us using any and all legal and maybe not so legal measures as hinted at by Senators Wyden and Udall.  If I understand the concern of the Senators and the ACLU, the issue revolves around how the Justice Department is interpreting Section 215 and how easily the Feds can spy on Americans without any showing of actual criminal behavior on the citizen’s part.

“This isn’t the first time the ACLU has sought information about the government’s use of this provision. Back in 2002, we filed a FOIA suit that eventually resulted in the release of a few hundred documents — including this, this, and this. But now the FBI is using Section 215 much more aggressively. It’s using it more often. And statements by Obama administration officials raise the distinct possibility that the government is using the provision to support entire surveillance programs.

As Wyden and Udall say, the secrecy surrounding the government’s use of new surveillance powers is unwarranted and fundamentally antidemocratic. The public should know, at least in general terms, how the government interprets its surveillance authority and how that authority is being used.” ACLU

The linked articles in the above quote from the ACLU hint that intelligence experts believe that Section 215 is being misused to allow the government to obtain massive amounts of geolocation information obtained from cell  phones.  Of course, unless the government discloses just how they are interpreting Section 215 in their dealings with the Foreign Intelligence Surveillance Court (FISA), we may never know.  However, when United States Senators are publicly nervous about the use of this allegedly misguided data collection process, then we should probably be really worried.

If the government is “stretching” the logical interpretation of the language in Section 215 to allow for massive date collection programs, what good is the FISA court if they are rubber stamping this type of alleged program?  What happened to the Obama Administration’s promise to be more transparent than past administrations when it came to their dealings with the Patriot Act and the FISA court?

We should not be surprised at the government’s “handling” of these Section 215 matters since Senator Durbin and then Senator Feingold went on record in the Senate with their grave concerns over misuse of Section 215 powers.

Section 215 has been repeatedly abused  On October 1, 2009, Senator Feingold made several statements regarding abuses of Section 215 during a Senate Judiciary Committee markup hearing:  “I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.I want to specifically disagree with Senator Kyle’s statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.”  Likewise, after the Senate rejected several reforms of Section 215 powers in 2009, Senator Durbin told his colleagues that:   “[T]he real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will whether ask our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.” ‘ Paranoia

I only wish that I had Senator Durbin’s confidence that the cloak of secrecy will ever be lifted.  Do you think the government should be required to disclose the Office of Legal Counsel memos that reportedly have authorized this over broad interpretation of Section 215?  If the government is allowed to spy on Americans who are not subjects of criminal or terror investigations, have the Fourth and Fifth Amendments been essentially neutered?  Is there any hope of the Patriot Act being brought under control, especially when so much of its use is hidden under the National Security label?  What do you think should be done?


92 thoughts on “How Patriotic is the Patriot Act?

  1. (with video)

    March 21, 2012

    Exposed: Inside the NSA’s Largest and Most Expansive Secret Domestic Spy Center in Bluffdale, Utah

    A new exposé in Wired Magazine reveals details about how the National Security Agency is quietly building the largest spy center in the country in Bluffdale, Utah, as part of a secret NSA surveillance program codenamed “Stellar Wind.” We speak with investigative reporter James Bamford, who says the NSA has established listening posts throughout the nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. The Utah spy center will contain near-bottomless databases to store all forms of communication collected by the agency. This includes the complete contents of private emails, cell phone calls and Google searches, as well as all sorts of personal data trails — parking receipts, travel itineraries, bookstore purchases and other digital “pocket litter.” “The NSA has constantly denied that they’re doing things, and then it turns out they are doing these things,” Bamford says in response to NSA Director General Keith Alexander’s denial yesterday that U.S. citizens’ phone calls and emails are being intercepted. “A few years ago, President Bush said before camera that the United States is not eavesdropping on anybody without a warrant, and then it turns out that we had this exposure to all the warrantless eavesdropping in the New York Times article. And so, you have this constant denial and parsing of words.” [includes rush transcript]

    Filed under Domestic Spying, Wiretapping, Whistleblowers, War on Terror

    James Bamford, investigative reporter who has covered the National Security Agency for the last three decades. His latest article for Wired Magazine is titled “The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say).” Since his reporting helped expose the NSA’s existence in the 1980s, he has authored of a series of books on the agency including, most recently, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America.

    NERMEEN SHAIKH: James Bamford, can you say what your response is to the way in which the Obama administration has dealt with this issue, as against how the Bush administration did, what differences there are, if any?

    JAMES BAMFORD: Well, I haven’t seen a lot of differences. President Obama, for example, when all the furor broke out over the warrantless eavesdropping during the Bush administration, came out and said that he was totally against that, he was going to vote against changing the law to allow that kind of thing and also to vote against giving immunity to the telecom companies. The telecom companies could have been charged with a crime for violating everybody’s privacy. But then, when he—when push came to shove and it came time to vote, he didn’t. He voted opposite to what he said, and he voted for the legislation, sort of creating this warrantless eavesdropping change to the law that he was—said he was previously against, which basically legalized what the Bush administration had been doing in their warrantless eavesdropping. And he also voted against—or he voted in favor of giving immunity to the telecom companies, which is again opposite of what he said previously.

    And now he’s, you know, the president here last three years, while they’ve been building this enormous—or at least completing this enormous infrastructure, and they hadn’t even started this when he became president, the large data center in Bluffdale. So I don’t really see an awful lot of difference between the two in terms of what’s going on with NSA. If anything, it’s gotten much larger under Obama than it was under Bush. (end of excerpts)

  2. “We are, like, that far from a turnkey totalitarian state,” he says.

    ~~former NSA official and crypto-math William (Bill) Binney, as reported in Wired Magazine, April 2012, as he held his thumb and forefinger a short distance apart

    March 21, 2012 | By Trevor Timm

    NSA Chief Appears to Deny Ability to Warrantlessly Wiretap Despite Evidence

    Feeling that “stellar wind”… but, hey, “it could never happen here”…

    • I know it is a bit of a cliche’ but could someone please print up some of those bumper stickers that say:

      “Honk if you are not under surveillance by NYPD”.

      I just want to know if there is anyone still out there.

  3. bigfatmike,

    Tragically for some it goes way behind mere surveillance (“mere” — as if surveillance alone is all right). I don’t recognize my country — or my life — anymore. But moving right along:

    NSA denies eavesdropping on Americans
    Published: 22 March, 2012, 21:53


    Also, if anyone will be in NYC and wants to attend:

    National Security Secrecy and Surveillance: Defending the Public’s Right to Know

    Location: OSI-New York
    Event Date: April 4, 2012
    Event Time: 6:00 p.m. – 8:00 p.m.
    Speakers: Steven Aftergood, Nancy Chang, Thomas Drake, Jameel Jaffer, Jesselyn Radack, Tim Shorrock

  4. “The NYPD has become a full subsididiary of the CIA and NSA.” -rafflaw

    As essay that might be of interest:

    Monday, March 19, 2012 by Common Dreams

    “Police State Blues: Our rights do not end where the caprice of authoritarian bullies begins.”

    by Phil Rockstroh

    (Hopefully, there’ll still be some cherry blossoms left when you’re in DC, rafflaw.)

  5. Someone You Love: Coming to a Gulag Near You

    by Chris Hedges
    Apr 2, 2012


    “There are now 1,271 government agencies and 1,931 private companies that work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States, The Washington Post reported in a 2010 series by Dana Priest and William M. Arken. There are 854,000 people with top-secret security clearances, the reporters wrote, and in Washington, D.C., and the surrounding area 33 building complexes for top-secret intelligence work are under construction or have been built since September 2011. Investigative reporter James Bamford wrote in the latest issue of Wired magazine that the National Security Agency is building the largest spy center in the country in Bluffdale, Utah, as part of a secret NSA surveillance program code-named “Stellar Wind.” Bamford noted that the NSA has established listening posts throughout the country to collect, store and examine billions of email messages and phone calls.

    If we lose this case it will hand to the vast network of operatives and agencies that investigate and demonize anyone who is not subservient to the corporate state the power to detain citizens and strip them of due process. It will permit the security and surveillance state to brand as terrorists any nonviolent protesters and movements, along with social and political critics, that in the government’s imagination have any trace of connection to al-Qaida or “associated forces.” If the National Defense Authorization Act is not reversed it will plunge us into despotism, leaving us without a voice, trapped in eddies of fear and terror, unsure of what small comment, what small action, could be misinterpreted to push us out of our jobs or send us to jail. This is the future before us. And we better fight back now while we can.”

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