Tuesday, May 31, 2011

The Death of The Constitution Act: Obama and the Extension of The Patriot Act

You would think that there would be great outrage by progressives over the Obama administration's signing of an extension of the Patriot Act, one of the most hated pieces of legislation by civil libertarians during the Bush era.  To give credit where it is due, there certainly have been some recriminations in the pages of the DailyKOS or the Democratic Underground, but otherwise you will not find too much dissent from the left.  It speaks volumes when someone like Ted Rall has to opine that the loss of his career, or what is left of it, was not a product of his editorial cartoons lampooning Bush, but the negative reaction of publications like The Nation over his criticisms of President Obama, particularly his carrying over of Bush's odious policies on national security and civil liberties.

And for those Democrats who continue to live the illusion that the POTUS is on the right side of this issue, he most certainly is not.  Indeed, Obama is more extreme than President Bush.  How extreme?  Right now, as I write this, our POTUS has interpreted a secret clause (right out of Dean Wormer on Animal House) from the Patriot Act that allows him to unilaterally do whatever he wants in the name of national security.  Sounds crazy?  Here it is.

There’s a Secret Patriot Act, Senator Says

by Spencer Ackerman

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 fiancĂ©e 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.”


How nice for our government to be able to secretly reinterpret laws as they see fit.  How I would love to tell my bank I have decided to reinterpret the law which commands repayment on the loan for my car purchase to mean that I do not have to pay for it after all.  I am sure they would be thrilled to hear that, as would the court and repossession agent from hell that would surely hound me.  Apparently, only governments are permitted to know the depths and legitimacy of deceiving populations.

How can any self-respecting progressive look at this assault on our Constitution, from the leadership of both parties, and not be outraged?  Where are the teabaggers, where are the right-wing libertarians, where are the civil libertarians on this issue?  And why is there little debate (with few honorable exceptions) about this in Congress?  It takes someone like Senator Wyden and even Rand Paul (yes, I give him his due on this issue) to finally state the obvious, but they are a minority in Congress (and in the case of Wyden he cowered to Senate Majority Leader Reid and pulled the more transparent amendments to the Patriot Act that he originally proposed).  The entire leadership of the Democratic Party in Congress voted to extend the Patriot Act.  The same with the Republicans.  In the so-called mainstream media, there has been too little discussion on this issue, excepting Cenk Uygur from The Young Turks on MSNBC.

Think about what is happening to our republic.  Right now, the POTUS could claim you to be a terrorist, without charge, without presentment, without indictment, and have you monitored, arrested, tortured, and/or killed, on his orders alone.  How is this different than the powers given to a government like North Korea?  How is this different than the excesses that occurred in Stalin's Russia or in Hitler's Germany?  If your government can monitor, arrest, torture, and kill you without charge, without cause, without warrant, without anything other than the word of one government bureaucrat, ladies and gentlemen, you no longer live in a free society.  You can call it semi-free, semi-dictatorial, whatever you want, but it is not a free society worth its name.

Consider also the Patriot Act was passed weeks after 9/11, with that terrorist attack used as the backdrop and claimed rationale for why we had to temporarily suspend our Bill of Rights.  The planner of 9/11, Khalid Sheikh Mohammed, is comfortably tucked away in Guantanamo Bay, and the leader of the organization that attacked us, Osama bin Laden, swimming with the fishes in the Persian Gulf.  By the CIA's own estimates, there are probably no more than a few hundred hardcore members of al-Qaeda in Pakistan left.  How in the world can we continue to justify allowing the NSA to catalog every one of our phone calls?  It certainly did nothing to prevent the Fort Hood shooter.  What is next, just have the federal government monitor all internet activity?  Why not, that is what the Chinese government has been trying to do for the past decade, and we certainly seem to be catching up with the PRC in the manner in which we spy on our citizens.

What President Obama has done in signing the extension of the Patriot Act is momentous.  It is as momentous as the day George Bush originally signed it into law because ten years later we have pretty much crushed our enemies.  At this point, there is nothing left to rationalize it except future hypothetical attacks by people we do not know about.  If that is the case, then what is the point of having privacy or a Bill of Rights at all?  If one takes what our president has told us, none.  And that is the lesson.  We are now moving over to normalizing the elimination of our rights as standard operating procedure for federal law enforcement and national security agencies.  For all intents and purposes, the Fourth Amendment is a dead letter.  Its utility is in name only.

And what is next in line for this slouching towards a praetorian state?  Government collection of all of our DNA at birth?  You could certainly use that as a rationale to solve a lot of unsolved crimes in this country, since familial DNA matches will bring up a lot of hits on CODIS.  How about having GPS devices on our population, beyond the criminals and parolees?  That would make it a lot easier to find suspected terrorists who have come to the attention of the FBI.  You know, mass killers and crazed bombardiers like peace activists and pacifists, whose anti-war activities have put them under anti-terrorist federal monitoring over the past several years (and without pesky things like warrants or cause to get in the way of the predilections of our friends in law enforcement).

You might think I am being conspiratorial about this, but I am not.  Who twenty years ago would have ever envisioned that the POTUS would have an assassination list that would include American citizens, to be killed without charge and on the orders of the commander-in-chief?  I never would have anticipated that development.  Just imagine, we threw a gasket at the thought of Nixon finding out about a break-in at the Democratic Party headquarters, and trying to cover it up, but say nothing of the the crimes committed by our presidents over the past ten years (crimes that have cost the lives of hundreds of thousands and repealed the liberties of our entire population).  Who would have ever thought before 9/11 that our government, through the NSA in Fort Meade, would catalog all of our phone calls and monitor around 10% of our internet activity on any given day (without warrant or cause)?  

If someone sneaks into your mailbox and reads your mail, he or she could be prosecuted under federal law and go to jail for years, but that same government sneaks into your emails every day, without invitation, without your knowledge, and without accountability (indeed, the law now allows our government to selectively re-interpret the act to do as it pleases).  A decade ago, I would have thought such possibilities the product of a warped mind.  Not anymore, sadly, and  unless the people of this country rise up, en masse, by the millions (people of all ideological persuasions) against what is taking place, or until (if ever) the Supreme Court bothers to step in and rein in these abuses, you can kiss goodbye your freedoms.

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