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Obama Administration Seeks Renewal of Three Key Parts of PATRIOT Act

StorySeptember 22, 2009
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The administration has asked lawmakers to extend powers allowing the government to collect a wide range of financial and personal records, as well as monitor suspects with roving wiretaps. The methods were authorized under the USA PATRIOT Act and are set to expire at year’s end. The call for renewing the PATRIOT Act provisions comes as Democratic lawmakers and civil liberties groups want to revisit its broader powers. Democratic Senator Russ Feingold of Wisconsin has proposed a new bill that would overhaul the PATRIOT Act and other surveillance laws to include more privacy safeguards. [includes rush transcript]

This is a rush transcript. Copy may not be in its final form.

SHARIF ABDEL KOUDDOUS: The Obama administration is facing a new test of its civil liberties policies as it seeks to renew three key Bush administration domestic surveillance laws. The administration has asked lawmakers to extend powers allowing the government to collect a wide range of financial and personal records, as well as monitor suspects with roving wiretaps. The methods were authorized under the USA PATRIOT Act and are set to expire at year’s end.

AMY GOODMAN: The call for renewing the PATRIOT Act provisions comes as Democratic lawmakers and civil liberties groups want to revisit its broader powers. Democratic Senator Russ Feingold of Wisconsin has proposed a new bill that would overhaul the PATRIOT Act and other surveillance laws to include more privacy safeguards. The measure would tighten rules that allow the FBI to bypass court warrants through "national security letters" and repeal a law granting immunity to major telecom firms that aided warrantless government spying.

Lisa Graves joins us now from Washington, DC. She is deputy director of the Center for National Security Studies. She is scheduled to testify tomorrow, Wednesday, before a Senate Judiciary Committee hearing on renewing the three PATRIOT Act methods.

Go through them each, Lisa, and tell us — give us a preview of your testimony tomorrow.

LISA GRAVES: Sure. Well, I’ve just moved over to be the executive director of the Center for Media and Democracy, and I’ve most recently left the Center for National Security Studies, but I’m still working on these issues.

So, tomorrow, in a hearing that will be chaired by Senator Leahy, my former boss, the Senate will be examining those PATRIOT Act powers. The three powers up for renewal are, first, the Section 215 powers that allow the government to obtain literally any tangible thing held by a third party about you with a secret court order, and that court order does not have to be based on any wrongdoing on your part or any suspicion that you’ve done anything wrong. The other provision, number two, is Section 206 of the PATRIOT Act, which relates to John Doe roving wiretaps, which allows the FISA court to issue a secret order to follow people’s cell phones, from cell phone to cell phone, if they’re suspected of being involved in terrorism. And the third provision is known as the lone wolf provision, which allows a full array of searches to be issued by the court secretly, if someone is believed to be a saboteur, but without any connection to al-Qaeda.

SHARIF ABDEL KOUDDOUS: And Lisa Graves, as you understand it, why is the Obama administration pushing to extend these provisions?

LISA GRAVES: Well, these provisions are provisions that were set by the Republicans for expiration this year. In some ways, these provisions are — they’re very problematic, but they’re not the most problematic provisions on the table. The most problematic provisions are the national security letter powers and some of the related powers that Senator Feingold has focused on. I think that the administration and the civil liberties community, in general, has the view that these powers are not going to be repealed this year, that they are — these are the type of powers that do need to be reformed. And so, the Obama administration’s decision to signal that it favors not repealing these provisions was not unexpected.

SHARIF ABDEL KOUDDOUS: And a group of senators led by Senator Russ Feingold have laid down a bill that would seek greater privacy protections. Can you go through what that bill is?

LISA GRAVES: Sure. Senator Feingold’s bill, along with nine other senators, is a very important bill. It’s basically the marker bill from a wide — supported by a wide range of senators, that would really make substantial improvements to these PATRIOT Act powers that Senator Feingold was the only senator to vote against in 2001.

Those changes include important restrictions on the new Foreign Intelligence Surveillance Act powers that were passed and rammed through Congress last year by the Bush administration. Those powers would prohibit the bulk collection of Americans’ international emails and telephone calls and would require more specificity in obtaining international communications. That provision would also repeal the telecom immunity provisions that passed last year, at the urging of AT&T and others, that basically stripped the rights of citizens to pursue cases in courts against phone companies that engaged in warrantless wiretapping at the behest of the Bush administration. Those are two of the key provisions in that bill.

It also reforms the national security letter powers, which right now can be issued by the FBI without any court approval and without any evidence specifying that a person is suspected of being a terrorist. Those provisions would be reformed by Senator Feingold and his colleagues to require court oversight for particularly sensitive requests, meaning court approval in advance.

AMY GOODMAN: Lisa Graves, this issue of the national security letters, extremely important. Perhaps hundreds of thousands of them have been issued. I think of the librarians who got a national security letter at the Library Connection, the group in Connecticut that run the internet in the central Connecticut library system, how the FBI came to them — George Christian, who was the head of it at the time — knocked on the door, handed him an NSL that demanded information about people using the internet at a certain time, a certain place, and they wanted that information. And the librarians fought back. They said no. They sued the US government over the PATRIOT Act. How are these NSLs used around the country?

LISA GRAVES: Well, that’s — the example of George Christian and his colleagues, who became known as the Connecticut Four, is very important, because that’s a case in which, during 2005, the Bush administration was arguing basically that concerns about access to libraries were unfounded and that people didn’t need to worry about the government going after libraries. And at the same time, simultaneously, the FBI had issued a national security letter secretly to the Library Connection and then gagged the librarians from telling Congress or anyone that they had received such a letter. And so, that particular instance, I think, was definitely used to —- used in a way that obscured the public debate, that made it difficult for the public to really understand what was happening. You ended up with allegations on both sides without having access to the truth. So now, under the bills that -—

AMY GOODMAN: I mean, that’s a key point on national security letters, is that you are not allowed to say that you got one. You can’t tell your partner, you can’t tell your boss, you can’t tell your colleague, on pain of five years in prison, that you even received a request for information.

LISA GRAVES: It’s most definitely a very pernicious prior restraint under the First Amendment. And as you mention, there are criminal penalties for violating the nondisclosure requirements. And in fact, this is the type of thing where Mr. Christian has said that he couldn’t tell his spouse, his partner, that he had received this request. And so, it’s very chilling. These librarians couldn’t even tell Congress, in a general sense, that they had received a national security letter.

And many businesses, most businesses that receive these letters — in fact, over 200,000 of them have been issued in the past seven years — most businesses don’t even challenge them. But in that instance, the librarians really stood up for people’s First Amendment rights and for the necessity of having some proof before some court that this — these sorts of powers are authorized. In the instance of Connecticut, the court, the Court of Appeals for the Second Circuit, found that the gag rule that was part of the PATRIOT Act was unconstitutional.

SHARIF ABDEL KOUDDOUS: And some civil libertarians are asking lawmakers to revisit the June 2008 law that President Obama voted for as senator that grants immunity to telecommunications companies from lawsuits for warrantless wiretapping that was conducted under the Bush administration. Is there any headway on that in Congress?

LISA GRAVES: Well, the fact that we now have ten senators supporting that repeal is an important — an important marker, because that provision was definitely rammed through Congress at the behest of the Director of National Intelligence and with a whole lot of lobbying by the heads of the United States telephone companies.

And that provision really undermines — the provision that passed last June really undermines public accountability for warrantless wiretapping, because the law, for decades, had said that any phone company that cooperates with wiretapping Americans without warrants is liable, is civilly liable. And in fact, it makes government officials criminally liable.

And so, the effort to deny any accountability, any justice for that wrongdoing, was most unfortunate. We were obviously disappointed that Senator Obama supported that bill with that provision in it. And it’s been unfortunate that the Obama administration has continued the Bush administration’s determination in those lawsuits to try to get the lawsuits dismissed.

AMY GOODMAN: So, explain what is happening on these different issues, like the national security letters. Are they being rewritten? Are they being removed?

LISA GRAVES: Well, I believe that there will be strong support in Congress for revising the national security letter powers and requiring more — a closer tie between the evidence that’s sought and a suspected terrorist. And so, that’s an improvement.

I know that there are efforts underway by Senator Feingold and Senator Leahy to basically reform the gag rules to address the unconstitutionality of the law as passed in 2005. So that, I think, enjoys strong support.

There are also efforts underway to reform the Section 215 powers, which allow access to any tangible thing without a sufficient showing of fact. Under current law, as passed by the Republican Congress and signed into law by the President, basically the assertions of the governments are treated as absolute, are treated as conclusive. And so, the new proposals would undo that putting the thumb on the scale of justice.

AMY GOODMAN: Lisa Graves, I want to thank you very much for being with us. And congratulations on your new job as executive director for the Center for Media and Democracy.

LISA GRAVES: Thank you so much.

AMY GOODMAN: And that does it for the broadcast. And we will link to the two FBI reports finding FBI agents — or the Justice Department inspector general reports finding that FBI agents frequently misused national security letters to obtain bank, credit card and telephone records.

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