Take this Patriot Act and shove it

I know I often defend the Obama administration, but this is not what we voted for.

The Senate may vote on a second temporary extension of several controversial counterterrorism authorities as part of the jobs bill unveiled Thursday.

The draft bill carries language that would extend until Dec. 31 three expiring provisions of the antiterrorism law known as the Patriot Act. [...]

The administration wants lawmakers to pass a long-term reauthorization of all the expiring provisions, with as few changes as possible. House and Senate Republicans also favor that approach.

The Patriot Act was a horrible bill from the get-go and should be abolished altogether. We elected Democrats to repair the damage the Bush regime did to our civil liberties and I'm especially pissed that our idiot Congresslizards, at the behest of the White House, sneak this crap into unrelated bills to avoid scrutiny. [hat tip Woody]

[More posts daily at The Detroit News]

One courageous judge rules for civil rights

By Libby

In this week of overwhelmingly depressing and disgusting betrayal by our political class, one small sign of sanity shines like a beacon of hope. A judge in Oregon struck down part of the Patriot Act.

Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment." [...]

"For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised," she wrote.

By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. attorney general's office was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."

If we could just bottle that common sense and courage and transfuse it to our elected politicians, maybe we could still save this country from the clutches of madmen, political opportunists and fools.

One small step back towards sanity

By Libby

I meant to get to this yesterday and ran out of steam. I don't want to get too excited because it's a lower court but still it's a heartening step in the right direction.

A federal judge struck down controversial portions of the USA Patriot Act in a ruling that declared them unconstitutional yesterday, ordering the FBI to stop its wide use of a warrantless tactic for obtaining e-mail and telephone data from private companies for counterterrorism investigations.

The ruling by U.S. District Judge Victor Marrero in New York said the FBI's use of secret "national security letters" to demand such data violates the First Amendment and constitutional provisions on the separation of powers, because the FBI can impose indefinite gag orders on the companies and the courts have little opportunity to review the letters.

Michael Stickings is already on this today and sums it up.

Freedom is indeed on the march, much to Bush's chagrin, and though the government will likely appeal, "the decision could eliminate or sharply curtail the FBI's issuance of tens of thousands of national security letters (NSLs) each year to telephone companies, Internet providers and other communications firms".

This can only be a good thing.

Someone Is Listening

Here they go again. The Bush Administration is once again asking congress to sacrifice freedom for the sake of security. They want more power to monitor foreigners suspected of being terrorists.

The proposal would change the way warrants are obtained from the FISA court.

The administration wants to be able to monitor foreign nationals on American soil if they are thought to have significant intelligence information, even without known links to a foreign power. Under current law, the government must convince a FISA judge that an individual is an agent of a government, terror group or some other foreign adversary.

Here is the key paragraph:

And the administration wants to allow government lawyers to decide whether a FISA court order is needed for electronic eavesdropping based on the target of the monitoring, not the mode of communication or the location where the surveillance is being conducted.

The main effect of this is that the NSA could monitor foreigners without a court approval including emails and phone calls in the U.S.

We're supposed to just trust these guys, right?

“This legislation is important to ensure that FISA continues to serve the nation as a means to protect our country from foreign security threats, while also continuing to protect the valued privacy interests and civil liberties of persons located in the United States,” the Justice Department said in a fact sheet released Friday.

How is giving government lawyers the power the tap phones and read emails going to protect our rights?

This admininstration should not be given any more power. The rights of Americans must be protected by the courts and the standard should still be probable cause.

I want my rights reviewed by a judge, not by some right-wing hack possibly educated by Pat Robertson.

The Bush Administration can not be trusted. Their propensity for lying and obfuscation are well documented. The abuses of the Patriot Act have also been documented and admitted to by the FBI.

King George has near dictatorial powers already. Will no one speak for the people?

Jim M

[thanks to The Moderate Voice for the link]

NSLs should be abolished

Nothing really surprising here. Just another doc for the growing pile of evidence that the FBI regularly lies to obtain secret surveillance warrants. This latest revelation has allegedly resulted in tightened controls on obtaining the warrants but considering that's what they told us when they allowed the program to go forward in the first place, I'm not betting the farm that much will change. It is what it is, and I certainly won't ever approve of secret domestic surveillance no matter how many rules they make to "safeguard" our privacy.

But this does provide an opportunity to revisit a related piece that I didn't get to while I was working last week, that being an op-ed by someone who has received a NSL from the FBI. It starts like this.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

He fought the NSL in court and never released the information. The FBI eventually decided it didn't really need it after all and dropped the request but not the gag order which still remains in effect.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

The author goes on to point out that with the gag orders, citizens like himself who had legitimate misgivings about the abuse of the NSLs were prevented from communicating their concerns to those who had an ability to prevent the abuse, for instance his Congressmen at the time the Patriot Act was being reauthorized. As the FBI's breaches of proper protocol continue to be revealed, one would have to agree.

Today's article in the WaPo references expert agreement that "Congress, the courts and the Justice Department share the blame for not conducting more aggressive oversight of FBI agents." One wonders how they were expected to exercise such oversight when the whole program has, and continues to operate under such unwarranted secrecy. As the op-ed author notes, "At some point -- a point we passed long ago -- the secrecy itself becomes a threat to our democracy."

In fact, isn't compelling a private citizen, under the threat of penalty, to lie to even his own family about the government's conduct a defining aspect of a police state? I remind you again. Fascism doesn't arrive overnight. It creeps in by degrees. The secret warrants clearly need better controls but the NSL program takes us one giant step closer to a totalitarian government and should be shut down completely - before it's too late to save democracy as we know it.

The silent coup of the neo-cons

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) wants to know if White House officials committed perjury and will be calling Karl Rove to testify in the ongoing US Attorney purge scandal. I love this kind of talk.

“Frankly, I don’t care whether [White House Counsel Fred Fielding] says he’s going to allow people or not. We’ll subpoena the people we want,” Leahy said. “If they want to defy the subpoena, then you get into a stonewall situation I suspect they don’t want to have.” Asked whether he’ll subpoena Rove, Leahy answered, “Yes. He can appear voluntarily if he wants. If he doesn’t, I will subpoena him.”

I wish they could get this fired up about war resolutions but I'll take what I can get and some real oversight over White House malfeasance is long overdue. And after listening to six years and more of how Clinton "deserved" to be impeached for lying about a farookin blow job, I'd really like to see how the wingnuts are going to justify the latest multitude of lies told by officials in this administration.

And speaking of lies, Justice is trying to take the heat off the White House, but it's clear that this trickery was deliberately planned.

Wednesday's explanation of the Patriot Act changes, along with the release of new e-mail correspondence, was meant to stave off mounting accusations by Democrats as their investigation into the administration's firing of the prosecutors widens. Democrats say they now are suspicious that the changes were part of an attempt to grab executive powers and play politics with prosecutorial appointments. They also accused the Justice Department of misleading Congress about the intent of the new law.

In e-mails released earlier this week, Justice Department officials discussed relying on the new powers to get "our preferred person appointed" with "far less deference to home state senators," according to an e-mail by Kyle Sampson, the former chief of staff to Attorney General Alberto Gonzales.

Furthermore, like every other neo-con trick to break down the checks and balances in favor of the unitary executive, this one was clearly planned well in advance.

In telephone interviews, Moschella and Collins both said Collins had floated the idea of taking district judges out of the vacancy-filling process back in 2003, when he was still at Justice. A former assistant U.S. attorney, Collins said the ability of a district court judge to appoint an interim U.S. attorney if the Senate did not confirm a nominee raised constitutional questions about the separation of powers.

It will be interesting to see if anything comes of this in the long run but one thing is perfectly clear. In the six years since 9/11, the terrorists haven't managed to take a single one of our freedoms and why would they even bother to try? The Bush administration has managed to practically destroy our system of government for them.

Show me the terrorists

Both AG Gonzales and the head of the FBI admit the FBI broke the law in order to conduct secret surveillance on Americans. However, the auditor alleges that "[a]bout three-fourths of the letters issued between 2003 and 2005 involved counterterror cases, with the rest for espionage investigations." One has to question that allegation since it turns out I understated the number of letters issued in yesterday's post. In fact since the Patriot Act, the requests have reached unprecendented levels.

In 2000, for example, the FBI issued an estimated 8,500 requests. That number peaked in 2004 with 56,000. Overall, the FBI reported issuing 143,074 requests in national security letters between 2003 and 2005.

But that did not include an additional 8,850 requests that were never recorded in the FBI's database, the audit found. A sample review of 77 case files at four FBI field offices showed that agents had underreported the number of national security letter requests by about 22 percent.

"Both Gonzales and Mueller called the national security letters vital tools in pursuing terrorists and spies in the United States" and The Counterterrorism blog agrees calling it simple bad bookkeeping which should be of no concern to Americans.

Before rushing to judgment and calling for the restriction or elimination of the NSL program, critics should remember that the problem is administrative, not operational. As such, civil liberties are not at risk. The only true risk is to national security if this issue escalates as a platform to diminish or eliminate an important investigative tool.

Well, I have to ask where are the indictments? We have all these hundreds of thousands of "requests" collecting this information but we don't have thousands of terrorists on trial. We don't even have ten terrorists on trial. They can spin this any they want but the fact remains that the Patriot Act has been used as an end run around due process to convict garden variety criminals that don't present a danger to national security.

Until the government can show us evidence that this information is really being used for terrorism investigations and not as an excuse for law enforcement to avoid conducting ordinary investigations under the rule of law, I don't see why Americans shouldn't demand an immediate end to the use of NSLs.

Did Bush order the FBI to break the law?

It's hardly shocking to learn that even under the wide latititude given them under the Patriot Act, the FBI is violating the law in issuing National Security Letters to secretly obtain private information on innocent Americans. Their legal obligations are not at all onerous yet the FBI has failed to meet their very low threshold for compliance.

[The investigator] Fine found that FBI agents used national security letters without citing an authorized investigation, claimed "exigent" circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters.

Fine claims the violations are not deliberate but that ignores an important point that Glenn Greenwald notes in his post. When the Patriot Act was reauthorized -- against my strenuous objections which only nine senators including Russ Feingold supported -- Bush issued one of his infamous signing statements announcing that he had no obligation to honor the oversight safeguards which formed the basis of the Senate's approval of the bill. As I recall there was a much debate and when the legislation passed the Senate assured us with great fanfare that they passed it specifically because these safeguards were going to "protect" Americans' privacy. So much for that.

The FBI has issued on the order of 47,000 of these NSLs. The auditor's review of only 293 of them found "22 possible breaches of internal FBI and Justice Department regulations -- some of which were potential violations of law --" and "the FBI identified 26 potential violations in other cases." Do the math for yourself folks. How many breaches would that be if the review were extended to all 47,000? Glenn sums up the greater implications.

The story here is not merely that the FBI is breaking the law and abusing these powers. That has long been predicted and, to some degree, even documented. The story is that the FBI is ignoring the very legal obligations which George Bush vowed were not obligations at all, but mere suggestions to be accepted only if he willed it. It is yet another vivid example proving that the President's ideology of lawlessness exists not merely in theory, but as the governing doctrine under which the executive branch has acted, time and again and as deliberately as possible, in violation of whatever laws it deems inconvenient.

One has to wonder just what are they doing with these databases of improperly obtained information? Somehow, I feel certain they're not deleting any of it.