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Howlers on the Patriot Act

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
Michelle Richardson,
Legislative Counsel, ACLU Washington Legislative Office
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March 15, 2011

The Patriot Act has been surrounded by a cloud of fear-mongering since it was reintroduced almost immediately after the 9/11 attacks and rushed through Congress, without any finding that the sweeping new powers granted by the act had anything to do with the problems and failures that contributed to that attack.

At the heart of the issue has been confusion between giving the authorities surveillance powers, and giving them unchecked surveillance powers. Much of what the Patriot Act did was to remove independent judges from oversight over invasions of privacy conducted in the name of law enforcement and national security.

Two Bush administration officials, former National Security Administration (NSA) director and former CIA director Michael V. Hayden and former Attorney General Michael B. Mukasey, continued that tradition of inaccuracy and fear-mongering in an op-ed published last week in the Washington Post. In their piece, they target a modest piece of legislation proposed by Sen. Patrick Leahy (D-Vt.) that would insert some much-needed oversight mechanisms into the Patriot Act. Hayden and Mukasey warn that the legislation “threatens key anti-terrorism tools.” But, acting fully in the tradition of government rhetoric around the power-grab Patriot Act, Hayden and Mukasey’s piece is rife with errors, distortions and inaccuracies:

  • They state that under the bill, some tools will be “eliminated,” but this is false: all three sunsetting provisions are reauthorized, while all others are left in place.
  • They state that “The Obama administration initially supported leaving these authorities in place but has backtracked” We’re not sure where this comes from, and we wish it were true, but it is not. The administration has endorsed the Leahy bill and its modest oversight provisions, but as the administration and Sen. Leahy have said repeatedly, it does not affect intelligence operations.
  • They repeat the same tired old rationale for the Patriot Act’s “lone wolf” provision, which permits surveillance of “non-U.S.” persons who are not affiliated with a terrorist group. Mukasey and Hayden assert the “20th hijacker Zacarias Moussaoui’s” computer could not have been examined without lone wolf. But independent and congressional investigations after 9/11 all found the same thing: the FBI absolutely had the factual basis to get a Foreign Intelligence Surveillance Act (FISA) warrant for Moussaoui — the only problem was that FBI agents just didn’t understand how FISA worked! And, if the power is so crucial, why have documents revealed that the FBI has never used the provision?
  • They misstate the law by stating that “the current law permitting an intelligence agency to get information through a national security letter (NSL) requires a certification that the information relates to an agent of a foreign power.” In fact, it does not, and that’s precisely what the problem is. What they describe was the law before the Patriot Act; since its passage the government needs only to certify that information is “relevant” to an investigation. This loose standard is a recipe for fishing expeditions, which probably explains why the FBI is issuing 40,000 to 50,000 of these extra-constitutional demands for information a year. We’re not even getting to the policy disagreements here — just a basic understanding of what the law does and does not say.

Hayden and Mukasey also include two howlers that are not directly related to the Patriot Act:

  • They write: “It bears emphasis here that such business and telephone records are information already in the hands of a third party, such as a bank or phone company, so the privacy interest of the subject is weak at best.” It would come as news to most Americans that they have only a “weak” privacy interest in their financial records, medical records, correspondence, and other information, just because they’re held in the hands of third parties. (It is true that the courts have to some extent followed that logic, but that is a major failure of our jurisprudence at the moment that needs to be fixed, not logic that Congress should confirm or embrace).
  • They write that “The legislation imposes, for NSLs, additional after-the-fact administrative and judicial review, as well as evaluations by the Justice Department inspector general…. these functions to some extent duplicate oversight already conducted by the Privacy and Civil Liberties Oversight Board.” It’s hard to believe they would cite the PCLOB; no oversight is “already conducted” by the Privacy and Civil Liberties Oversight Board since the PCLOB does not actually exist. That is because neither Bush nor Obama have appointed a quorum to the board. The PCLOB, if activated, could be an important privacy oversight mechanism — but are we to see it used as an excuse for inaction on privacy oversight, even as the government leaves it empty?

The inaccuracies in the Hayden-Mukasey piece did not escape the attention of Sen. Leahy, who was moved to write a letter to the Washington Post with Sen. Dianne Feinstein (D-Calif.).

We certainly applaud Sen. Leahy for trying to put some modest but important oversight and accountability mechanisms into the Patriot Act, a law that runs counter to long-established Anglo-American traditions of privacy and due process. But this bill certainly doesn’t go as far as is needed, and is unlikely to reduce the number of people caught in government spying programs. To say that the bill will hamper intelligence activities at all is laughably unfounded.

The Hayden-Mukasey piece continues the Bush administration’s tradition of distorting the truth and fear-mongering. It’s time we cleared the air.

(Originally posted on Daily Kos.)

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