Wired, September 15, 2009
In a letter to Sen. Patrick Leahy, the Vermont Democrat and chairman of the Senate Judiciary Committee, the Justice Department said the administration might consider “modifications” to the act in order to protect civil liberties.
“The administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities,” Ronald Weich, assistant attorney general, wrote to Leahy, (.pdf) whose committee is expected to consider renewing the three expiring Patriot Act provisions next week. The government disclosed the letter Tuesday.
It should come as no surprise that President Barack Obama supports renewing the provisions, which were part of the Patriot Act approved six weeks after the Sept. 11, 2001 attacks.
As an Illinois senator in 2008, he voted to allow the warrantless monitoring of Americans’ electronic communications if they are communicating overseas with somebody the government believes is linked to terrorism. That legislative package, which President George W. Bush signed, also immunized the nation’s telecommunication companies from lawsuits charging them with being complicit with the Bush administration’s warrantless, wiretapping program. That program was also adopted in the wake of Sept. 11.
These are the three provisions due to expire:
*A secret court, known as the FISA court, may grant “roving wiretaps” without the government identifying the target. Generally, the authorities must assert that the target is an agent of a foreign power and/or a suspected terrorist. The government said Tuesday that 22 such warrants — which allow the monitoring of any communication device — have been granted annually.
*The FISA court may grant warrants for “business records,” from banking to library to medical records. Generally, the government must assert that the records are relevant to foreign intelligence gathering and/or a terrorism investigation. The government said Tuesday that 220 of these warrants had been granted between 2004 and 2007. It said 2004 was the first year those powers were used.
*A so-called “lone wolf” provision, enacted in 2004, allows FISA court warrants for the electronic monitoring of an individual even without showing that the person is an agent of a foreign power or a suspected terrorist. The government said Tuesday it has never invoked that provision, but said it wants to keep the authority to do so.
“The basic idea behind the authority was to cover situations in which information linking the target of an investigation to an international group was absent or insufficient, although the target’s engagement in ‘international terrorism’ was sufficiently established,” Weich wrote.
The American Civil Liberties opposes renewing all three provisions, especially the lone wolf measure.
Michelle Richardson, the ACLU’s legislative counsel, said in a telephone interview, “The justification for FISA and these lower standards and letting it operate in secret was all about terrorist groups and foreign governments, that they posed a unique threat other than the normal criminal element. This lone wolf provision undercuts that justification.”
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