Pubdate: Tue, 21 Jun 2011
Source: AlterNet (US Web)
Copyright: 2011 Independent Media Institute
Author: Zack Kaldveer, Communications Director of the Consumer 
Federation of California, a non-profit advocacy organization. CFC 
campaigns for state and federal laws that place consumer protection 
ahead of corporate profit.  Zack also authors the blog Privacy Revolt.


The Constitutional "Precedent" Set by the Patriot Act Appears to Be 
Serving to Accelerate the Rapid Disintegration of Civil Liberties in 
This Country

With the stroke of an autopen, the once articulate critic of the
Patriot Act signed a four year extension of the most dangerous assault
on American civil liberties in US history without a single additional
privacy protection.

One would think that this reauthorization would have incited vigorous
debate in the halls of Congress and at least a fraction of the
breathless 24/7 media coverage allotted the Anthony Weiner "sexting"
scandal. Instead, three weeks ago the House (250 to 153) and Senate
(72 to 23) approved, and the President signed, an extension of this
landmark attack on the Bill of Rights with little notice and even less

Most disturbing was the extension - without modification - of the
Act's three most controversial provisions:

   allows broad warrants to be issued by a secretive court for any 
type of record, from financial to medical, without the government 
having to declare that the information sought is connected to a 
terrorism or espionage investigation;

    allows the FBI to obtain wiretaps from the secret court (i.e. 
"roving wiretaps",) known as the FISA court, without identifying the 
target or what method of communication is to be tapped;

   allows the FISA court warrants for the electronic monitoring of a 
person ("lone wolf" measure ) for whatever reason -- even without 
showing that the suspect is an agent of a foreign power or a terrorist.

Also in need of reform, are what's called National Security Letters
(NSLs) - which allow the FBI, without a court order, to obtain
telecommunication, financial and credit records deemed "relevant" to a
government investigation. The FBI issues about 50,000 a year and an
internal watchdog has repeatedly found the flagrant misuse of this

The Long Record of Patriot Act Abuses

Any meaningful debate over whether to reauthorize any and all of these
provisions without significant additional privacy protections should
include a few key questions. One, have these provisions made us
significantly safer (i.e. are there documented incidences they have
led to capturing terrorists plotting against us?)? Two, is there any
evidence that they have been abused? Three, is their claimed
usefulness somehow jeopardized by the kinds of modest reforms privacy
rights groups (and others) advocate? And finally, have we created a
dangerous constitutional precedent?

Thanks to the relentless work by groups like the American Civil
Liberties Union (ACLU) - and information uncovered by the Freedom of
Information Act - there is little to no evidence that these
provisions, as written, have made us any safer. Yet there's a long
list of incidences of unadulterated government abuse and malpractice
for a host of purposes other than fighting terrorism. In other words,
the threat this Act, and these particular provisions pose to the basic
Constitutional rights of American citizens is not hypothetical, but
documented fact.

Consider what we know:

   The FBI admitted in a recent report to the President's 
Intelligence Oversight Board that it violated the law at least 800 
times on national security letters, going well beyond even the loose 
safeguards in the original provision. According to the report the FBI 
"may have violated the law or government policy as many as 3,000 
times" between 2003 and 2007, according to the Justice Department 
Inspector General, while collecting bank, phone and credit card 
records using NSLs.

   As Adam Sewer of the American Prospect notes: "It's no secret that 
the FBI's use of NSLs - a surveillance tool that allows the FBI to 
gather reams of information on Americans from third-party entities 
(like your bank) without a warrant or without suspecting you of a 
crime - have resulted in widespread abuses. All that the FBI needs to 
demand your private information from a
third-party entity is an assertion that such information is 
"relevant" to a national security investigation -- and the NSLs come 
with an accompanying gag order that's almost impossible to challenge in

   NSLs were used by the Bush administration after the Sept. 11, 2001 
attacks to demand that libraries turn over the names of books that 
people had checked out. In fact, there were at least 545
libraries that received such demands in the year following passage of 
the Patriot Act alone.

   The Electronic Frontier Foundation (EFF) uncovered "indications 
that the FBI may have committed upwards of 40,000 possible 
intelligence violations in the 9 years since 9/11." It said it could 
find no records of whether anyone was disciplined for the infractions.

   Under the Bush Administration, the FBI used the Patriot Act to 
target liberal groups, particularly anti-war, environment, and 
anti-globalization, during the years between 2001 and 2006 in particular.

   According to a recent report by the ACLU, there have been 111 
incidents of illegal domestic political surveillance since 9/11 in 33 
states and the District of Columbia. The report shows that law 
enforcement and federal officials work closely to monitor the 
political activity of individuals deemed suspicious, an activity 
common during the Cold War - including protests, religious activities 
and other rights protected by the first amendment. The report also 
noted how the FBI monitors peaceful protest groups and in some cases 
attempted to prevent protest activities.

   According to a July 2009 report from the Administrative Office of 
the U.S. Courts, only three of the 763 "sneak-and-peek" requests in 
fiscal year 2008 involved terrorism cases. Sixty-five percent were 
drug related.

John Whitehead, author of "Renewing the Patriot Act While America
Sleeps", described our post Patriot Act reality in appropriately stark
terms, writing, ""Suddenly, for the first time in American history,
federal agents and police officers were authorized to conduct black
bag "sneak-and-peak" searches of homes and offices and confiscate your
personal property without first notifying you of their intent or their
presence. The law also granted the FBI the right to come to your place
of employment, demand your personal records and question your
supervisors and fellow employees, all without notifying you; allowed
the government access to your medical records, school records and
practically every personal record about you; and allowed the
government to secretly demand to see records of books or magazines
you've checked out in any public library and Internet sites you've

And now - according to the New York Times - new guidelines from the
Justice Department will allow FBI agents to investigate people and
organizations "proactively" without firm evidence for suspecting
criminal activity. The new rules will free up agents to infiltrate
organizations, search household trash, use surveillance teams, search
databases, and conduct lie detector tests, even without suspicion of
any wrongdoing.

In other words, the Constitutional "precedent" set by the Patriot Act
appears to be serving to accelerate the rapid disintegration of civil
liberties in this country.

Of equal concern is what we still don't know about how the government
might be using the Act, highlighted by recent statements made by US
Senators regarding what they termed "secret Patriot Act provisions".
Senator Ron Wyden (D-OR), an outspoken critic of the recent
reauthorization, stated, "When the American people find out how their
government has secretly interpreted the Patriot Act they will be
stunned and they will be angry." As a member of the Senate
Intelligence Committee Wyden is in a position to know, as he receives
classified briefings from the executive branch.

In recent years, three other current and former members of the US
Senate - Mark Udall (D-CO), Dick Durbin (D-IL), and Russ Feingold
(D-WI) - have provided similar warnings. We can't be sure what these
senators are referring to, but the evidence suggests, and some assert,
that the current administration is using Section 215 of the Patriot
Act - a provision that gives the government access to "business
records" - as the legal basis for the large-scale collection of cell
phone location records.

The fact that in 2009 Sprint disclosed that law enforcement made 8
million requests in 2008 alone for its customer's cell phone GPS data
for purposes of locational tracking should only add to these
legitimate privacy concerns.

Security Versus Privacy: A False Dichotomy

The Patriot Act was sold as an indispensable weapon in the
government's arsenal to fight and "win" the "War on Terror". We were
assured that the sole purpose of these unprecedented powers granted
government were to locate and catch terrorists - not raid the homes of
pot dealers and wiretap peace activists. Monitoring political groups
and activities deemed "threatening" (i.e. environmentalists, peace
activists), expanding the already disastrous and wasteful war on
drugs, and eavesdropping on journalists isn't about fighting
terrorism, it's about stifling dissent and consolidating power - at
the expense of civil liberties.

How ironic that the very "tool" hailed as our nation's protector has
instead been used to violate the very Constitutional protections we
are allegedly defending from "attack" by outside threats. What was
promised as a "temporary", targeted law to keep us safe from terror
has morphed into a rewriting of the Bill of Rights.

John Whitehead explains: "The Patriot Act drove a stake through the
heart of the Bill of Rights, violating at least six of the ten
original amendments-the First, Fourth, Fifth, Sixth, Seventh and
Eighth Amendments-and possibly the Thirteenth and Fourteenth
Amendments, as well. The Patriot Act also redefined terrorism so
broadly that many non-terrorist political activities such as protest
marches, demonstrations and civil disobedience were considered
potential terrorist acts, thereby rendering anyone desiring to engage
in protected First Amendment expressive activities as suspects of the
surveillance state."

It's almost as if Benjamin Franklin had the Patriot Act in mind when
he famously stated, "Those who would give up essential liberty to
purchase a little temporary safety, deserve neither liberty nor safety."

Noted privacy and security expert Bruce Schneier expanded on this
false dichotomy, writing, "...those who would give up privacy for
security are likely to end up with neither," concluding "If you set up
the false dichotomy, of course people will choose security over
privacy -- especially if you scare them first. But it's still a false
dichotomy. There is no security without privacy."

The fact that the odds of EVER being killed or maimed in a terrorist
attack are a fraction of that posed by being hit by lightning, we
should always approach government demands for increasingly intrusive
and ripe for abuse authority with a healthy dose of skepticism and a
large grain of salt.

The long, documented record of government overreach and abuse since
9/11 begs a larger question, "Can we truly defeat "the terrorists" by
succumbing to fear and embracing a less free and more authoritarian
society (which are ostensibly primary goals of terrorists)?"

Constitutional scholar Glenn Greenwald further illuminates this false
"security versus privacy" dichotomy promulgated by those with inherent
conflicts of interest, writing:

"The problem is never that the U.S. Government lacks sufficient power
to engage in surveillance, interceptions, intelligence-gathering and
the like. Long before 9/11 -- from the Cold War -- we have vested
extraordinarily broad surveillance powers in the U.S. Government to
the point that we have turned ourselves into a National Security
andSurveillance State. Terrorist attacks do not happen because there
are too many restrictions on the government's ability to eavesdrop and
intercept communications, or because there are too many safeguards and
checks. If anything, the opposite is true: the excesses of the
Surveillance State -- and the steady abolition of oversights and
limits -- have made detection of plots far less likely. Despite that,
we have an insatiable appetite -- especially when we're frightened
anew -- to vest more and more unrestricted spying and other powers in
our Government, which -- like all governments -- is more than happy to
accept it."

Candidate Obama Versus President Obama

President Obama's now ardent embrace of the same provisions he so
eloquently criticized as a candidate - while aggressively opposing any
of the reforms he once advocated on behalf of - has come to epitomize
a disturbing shift in this country since 9/11.

The eloquent, pro-civil liberties "candidate Obama" branded the
Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In
2005, he pledged to filibuster a Bush-sponsored bill that included
several of the recently extended provisions, calling them "just plain

In perhaps his most forceful critique, he stated, "Government has
decided to go on a fishing expedition through every personal record or
private document -- through library books they've read and phone calls
they've made...We don't have to settle for a Patriot Act that
sacrifices our liberties or our safety -- we can have one that secures

Now, channeling none other than George W. Bush himself, President
Obama warns that any delay of the complete and absolute renewal of the
Act - or even the addition of a single privacy protection - would
endanger American lives.

Thus, what was once viewed as the signature of Bush/Cheney radicalism
is now official, bipartisan Washington consensus - serving to codify
our country's continued departure from its commitment to the basic
tenets articulated in the Bill of Rights.

Attempted Reforms Ignored, Rejected

Efforts to address the most dangerous and far reaching components of
the Patriot Act have been repeatedly offered by Senators and House
members alike - to no avail. The reforms sought have been modest in
nature, targeted in scope, and critical to reining in government abuse
- - without weakening national security.

For example, this year, Senator Bernie Sanders offered an amendment -
supported by the American Library Association, the ACLU and the
National Association of Booksellers - which would have prevented the
government from gaining access to Americans' reading records in
libraries and bookstores without a traditional search warrant.

Similarly, former Senator Russ Feingold, during a previous Patriot Act
extension fight, sought to require the government to specify more
clearly the targets of their investigations and their connections to
terrorism, keep the FBI from using its authority to engage in
broad-based data-mining of Americans' phone, library and business
records, more effective checks on government searches of Americans'
personal records, reform the FISA Amendments Act by repealing the
retroactive immunity provision for the same telecom companies that
continue to make billions off overcharging the very customers they
betrayed, and prevent "bulk collection" of the contents of Americans'
international communications.

Not only have such attempts been rejected year after year, many aren't
even granted a Congressional hearing or vote. Just as disturbing is
the failure of the mainstream media to dedicate any significant time
and attention to an issue that so clearly warrants a vigorous national
debate - such as how to strike the proper balance between civil
liberties and national security.

The Bill of Rights Under Siege

Some important questions demand answers: Does increasingly intrusive
and even unconstitutional anti-terrorism measures actually make us any
safer (or less so)? If so, what is the price we are willing to pay for
that additionally security?

Since 9/11 an undeniable pattern has emerged, from illegal search and
seizures to warrantless wiretapping to the GPS tracking of cell phones
to airport body scanners to the redefinition of Habeas Corpus to the
increasing use of rendition for the purposes of torturing prisoners
yet to be charged with a crime to military tribunals replacing courts
of law, among many others.

What were once considered unassailable civil liberties granted to ALL
citizens are under siege. The consequences of such a loss would be
profound. Without the fundamental reform of the Patriot Act I fear
this loss will be a permanent, and the American experiment will
forever be altered.

Moving Forward: Building a Left/Right Coalition

So what to do? From a purely ideological perspective, the potential
exists for growing a left/right coalition around a mutual commitment
to the Bill of Rights. Already, more than 400 local, county and state
resolutions have been passed in opposition to the Patriot Act. But,
interest and opposition energy has largely waned over time. This must

On the left, while there still remains significant opposition (as
evidenced by the recent votes in the House and Senate), a much larger
and vocal effort existed when President Bush was abusing the same
powers that exist now - no doubt in part due to sharing party
affiliation with the new President. We must make the case to these
voters that regardless of who sits in the White House, these are
powers that NO branch of government, or intelligence agency, deserves.

On the right, it is common place to vocally declare allegiance to the
Constitution and the principles of freedom and liberty. Yet, the
Patriot Act - which desecrates those very principles - is close to a
non-issue, with more focus on the alleged grave threat posed by
expanding health care. This group's inherent distrust of President
Obama - warranted or not - may serve to enhance the likelihood of
convincing these voters that the Patriot Act represents a clear and
present danger to everything they espouse.

Also working in our favor is the broad based, ideologically diverse
"Patriot Act Reform" coalition that already exists, including the ACLU
(an excellent source of Patriot Act related information), the
Electronic Frontier Foundation, the CATO Institute, the Liberty
Coalition, the American Library Association, the Bill of Rights
Defense Committee, and the Competitive Enterprise Institute. While
impressive, this coalition must be vastly expanded.

Irrational fears of terrorism, hyped by political, military and
corporate interests, are at the root of our nation's current "civil
liberties" crisis. We must counter this growing "fear industrial
complex" with a "people's majority" dedicated to preserving the Bill
of Rights and protecting the privacy of American citizens. This
challenge - and responsibility - should begin in earnest today.
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MAP posted-by: Richard R Smith Jr.