The Patriot Act: Losing a Grip on Liberty

"Those who give up their liberty in exchange for security may end up with neither." -- Ben Franklin

Senator Rand Paul (KY) was flexing his freshman senator muscles today with a filibuster to block the Harry Reid-lead senate majority from renewing one of the most compromising pieces of legislation the government has ever passed....the Patriot Act. I'm not usually one for legislative gridlock, and the filibuster has always seemed like a glorified way for the minority party to bitch, but in this case, I'm perfectly content with the maneuver. Feel free to peruse this video for an impassioned introduction to the issue.

Now, I'm pretty sure that Khalid Sheikh Mohammed has never read the Magna Carta, but that can't mean we throw due process out the window either. The Patriot Act is so much more than just playing hopscotch with civil law though. Analogies and euphemisms abound in my head as I try to basically say, after 9/11, the government knocked, we opened the door, and asked them in for tea. Now, they tell us what tea to drink. (even 10 years later)

If I've learned one thing in my life, it's to not make rash decisions in times of disarray. The Patriot Act was written and passed on Oct. 26, 2001, about one and a half months after 9/11. During this era, everyone's latent fear of terrorism instantaneously rose to utter panic and in times of great sadness, we handed over our civil liberties to the government. At the time, it seemed all counter-terrorist actions were justified, but over time, we were supposed to sunset most of the provisions of the act. That opportunity was perfidiously befuddled in '05, of course, by the driving voice of neoconservatives within the Bush Administration.

However, there was opposition at the time, and it was from the left.

Quoted from that '05 Bloomberg article:

"At a political rally after the vote, Reid told a cheering crowd, ``We killed the Patriot Act.'' Reid said Republicans are refusing to extend the law because ``they wanted the political issue.''"

My my how things have changed, but I would like to know why they've changed. Today's battle was billed as "Rand vs Harry" from the get go. It seems that 6 years and a regime change has shifted Mr. Reid's opinion a step. This is from today's NY Times :

"The standoff led to a harsh exchange Wednesday. Mr. Reid accused Mr. Paul of putting the country at risk with “political grandstanding.” Mr. Paul accused Mr. Reid of breaking a promise to allow a full debate over the Patriot Act, which he portrayed as a threat to constitutional rights."

In '05, Harry Reid supported a filibuster and then told a cheering crowd that he killed the Patriot Act, now he's accusing Rand Paul of grandstanding. If someone can think of a better word than "hypocrite", please let me know.

Why the capriciousness though? Why is it that Reid's take on counter-terrorism has shifted in the last 6 years? Could it be that the title of senate majority leader implicitly defines him as a protectorate for his president's policies? Will the senate majority leader protect the status quo, no matter what it is at the time, and no matter what their past stance on it was? That's obviously what I think, but I'm open to other suggestions...

Wouldn't it be nice if we voted Obama off the show? Sorry slightly nonsensical reply but I am just testing this here forum contraption...

There’s a Secret Patriot Act, Senator Says
By Spencer Ackerman May 25, 2011 | 4:56 pm | Categories: Crime and Homeland Security


You think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden says it’s worse than you know.

Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy ”dragnets” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called “business-records provision,” which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.

“It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

That’s why Wyden and his colleague Sen. Mark Udall offered an amendment on Tuesday to the Patriot Act reauthorization.

The amendment, first reported by Marcy Wheeler, blasts the administration for “secretly reinterpret[ing] public laws and statutes.” It would compel the Attorney General to “publicly disclose the United States Government’s official interpretation of the USA Patriot Act.” And, intriguingly, it refers to “intelligence-collection authorities” embedded in the Patriot Act that the administration briefed the Senate about in February.


Wyden says he “can’t answer” any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information — something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.

“I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected,” he says.

Surveillance under the business-records provisions has recently spiked. The Justice Department’s official disclosure on its use of the Patriot Act, delivered to Congress in April, reported that the government asked the Foreign Intelligence Surveillance Court for approval to collect business records 96 times in 2010 — up from just 21 requests the year before. The court didn’t reject a single request. But it “modified” those requests 43 times, indicating to some Patriot-watchers that a broadening of the provision is underway.

“The FISA Court is a pretty permissive body, so that suggests something novel or particularly aggressive, not just in volume, but in the nature of the request,” says Michelle Richardson, the ACLU’s resident Patriot Act lobbyist. “No one has tipped their hand on this in the slightest. But we’ve come to the conclusion that this is some kind of bulk collection. It wouldn’t be surprising to me if it’s some kind of internet or communication-records dragnet.” (Full disclosure: My fiancée works for the ACLU.)

The FBI deferred comment on any secret interpretation of the Patriot Act to the Justice Department. The Justice Department said it wouldn’t have any comment beyond a bit of March congressional testimony from its top national security official, Todd Hinnen, who presented the type of material collected as far more individualized and specific: “driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, and the like.”

But that’s not what Udall sees. He warned in a Tuesday statement about the government’s “unfettered” access to bulk citizen data, like “a cellphone company’s phone records.” In a Senate floor speech on Tuesday, Udall urged Congress to restrict the Patriot Act’s business-records seizures to “terrorism investigations” — something the ostensible counterterrorism measure has never required in its nearly 10-year existence.

Indeed, Hinnen allowed himself an out in his March testimony, saying that the business-record provision “also” enabled “important and highly sensitive intelligence-collection operations” to take place. Wheeler speculates those operations include “using geolocation data from cellphones to collect information on the whereabouts of Americans” — something our sister blog Threat Level has reported on extensively.

It’s worth noting that Wyden is pushing a bill providing greater privacy protections for geolocation info.

For now, Wyden’s considering his options ahead of the Patriot Act vote on Thursday. He wants to compel as much disclosure as he can on the secret interpretation, arguing that a shadow broadening of the Patriot Act sets a dangerous precedent.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

This is the first time I have had any sort of respect for Rand Paul.

Well, this doesn't seem to be a tough one for most people, but again, why the disconnect from perceived sense to protracted nonsense? Why does this act continue to pass no matter what side of the aisle has control? Why did Harry Reid hate it and want to kill it in '06 but think abolishing it would put us at risk here? I don't think we're really talking about catching terrorists anymore, is where I'm going with this.....

Thanks for joining Mnesarch and Mzee!!!

I don't blame him, I wouldn't want to come anywhere close to this piece of legislation either if I were him...unfortunately not enough to keep him from signing however...

Obama Uses Autopen to Sign Patriot Act Extension
By MICHAEL D. SHEAR
Where in the world is President Obama? Turns out it doesn’t matter.

For the first time in United States history, a bill has been signed into law by a mechanical autopen, which affixed the president’s signature at the direction of Mr. Obama, who is in Europe.

Congress on Thursday passed legislation extending the Patriot Act for four years. (House vote | Senate vote) But with Mr. Obama abroad and the existing legal authorities set to expire, the White House concluded that a mechanical signature would do.

“Failure to sign this legislation poses a significant risk to U.S. national security,” Nick Shapiro, an assistant press secretary in the White House, said before the vote on Thursday. “As long as Congress approves the extension, the president will direct the use of the autopen to sign it.”

With that declaration, Mr. Obama turned a machine that is ubiquitous in government and business for routine transactions — letters, ceremonial photos, promotional materials — into the ultimate stand-in replacement for the leader of the free world.

White House officials said this was the first time that Mr. Obama had used the autopen to sign a piece of legislation and added that the administration believed it was the first time that a president had used the device to turn a bill into law.

The White House had a staff member ready for several days to fly to Europe with a copy of the legislation for Mr. Obama to sign, but Congress delayed action longer than expected. Under pressure to make sure that no provisions of the Patriot Act lapsed for any time, lawyers researched the use of the mechanical device.

White House officials are apparently basing their legal conclusion on a memorandum written by the Justice Department under President George W. Bush in 2005, which concluded that “the president need not personally perform the physical act of affixing his signature to a bill to sign it.”

Instead, the president’s lawyers at the time decided, “we emphasize that we are not suggesting that the president may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the president’s signature to the bill.”

Still, despite that opinion, it appears that Mr. Bush never used the autopen to sign a bill.

As recently as December, when Congress passed legislation providing health care benefits to rescue workers in New York who responded to the Sept. 11 attacks, a staff member flew to Hawaii, where the president was vacationing, with a copy of the bill for Mr. Obama to sign.

“It came out with a member of the staff so that it could be signed in a timely fashion,” said Bill Burton, who was White House deputy press secretary at the time.

In 2005, Mr. Bush flew back to Washington through the night from his ranch in Texas so that he could sign a bill that was intended to force doctors to keep feeding Terri Schiavo, the comatose Florida woman whose husband was fighting to end her life.

Now, however, such a flight may no longer be necessary if presidents begin routinely signing legislation into law with the autopen.

Of course, an autopen signature might be politically dangerous for a president in some cases. And there are times when presidents are eager to stage elaborate signing ceremonies to highlight legislation that they have pushed for.

In those cases, presidents often use multiple pens to sign legislation so that they can give them to the legislative leaders or activists who helped get the bill passed.

It’s not clear that pens used by a machine would hold the same kind of meaning.