On Overlooked Battles and Unsung Heroes

In the midst of so much policy disarray, it is easy to overlook many issues that deserve our attention. I’m beginning to think all the chaos may be angle of hat trick magician relying on slight of hand and misdirection. So, just as I continue to hammer at boring things like bank reform, I continue to follow things related to the Patriot Act, FISA, and other potential intrusions that are in conflict with constitutional rights.

Today, the NY Times predicted “A Looming Battle Over the Patriot Act”. Remember, the most sensitive portions and controversial are those that involve surveillance. House and Senate committees are discussing re-authorization of three key sections that are set to expire at the end of this year. In a continuation of the Bush-Cheney encroachment on civil liberties, the Obama-Biden administration seeks re-authorization.

The provisions expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation.

Laying down a marker ahead of those hearings, a group of senators who support greater privacy protections filed a bill on Thursday that would impose new safeguards on the Patriot Act while tightening restrictions on other surveillance policies. The measure is co-sponsored by nine Democrats and an independent.

Days before, the Obama administration called on Congress to reauthorize the three expiring Patriot Act provisions in a letter from Ronald Weich, assistant attorney general for legislative affairs. At the same time, he expressed a cautious open mind about imposing new surveillance restrictions as part of the legislative package.

“We are aware that members of Congress may propose modifications to provide additional protection for the privacy of law abiding Americans,” Mr. Weich wrote, adding that “the administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities.”

At the moment, there appears to be very little evidence that the FBI has abused its current power. Is that the salient point over which to argue for or against re-authorization? Sadly, we liberals have so much on our plate now with pressuring an administration and congress that should be our ally on things like truly universal health care, involvement in Iraq and Afghanistan, and continuation of Bush financial market bailouts, that we could potentially miss this important battle over one of our most basic rights. That right to go missing would be security from government invasion into our person and homes without due process.

The first such provision allows investigators to get “roving wiretap” court orders authorizing them to follow a target who switches phone numbers or phone companies, rather than having to apply for a new warrant each time.

From 2004 to 2009, the Federal Bureau of Investigation applied for such an order about 140 times, Robert S. Mueller, the F.B.I. director, said at a Senate Judiciary Committee hearing last week.

The second such provision allows the F.B.I. to get a court order to seize “any tangible things” deemed relevant to a terrorism investigation — like a business’s customer records, a diary or a computer.

From 2004 to 2009, the bureau used that authority more than 250 times, Mr. Mueller said.

The final provision set to expire is called the “lone wolf” provision. It allows the F.B.I. to get a court order to wiretap a terrorism suspect who is not connected to any foreign terrorist group or foreign government.

Mr. Mueller said this authority had never been used, but the bureau still wanted Congress to extend it.

Several other lawmakers are expected to file their own bills addressing the Patriot Act and related surveillance issues in the next several weeks.

Many of the proposals under discussion involve small wording shifts whose impact can be difficult to understand, in part because the statutes are extremely technical and some govern technology that is classified.

But in general, civil libertarians and some Democrats have called for changes that would require stronger evidence of meaningful links between a terrorism suspect and the person whom investigators are targeting.

In the same way, some are proposing to use any Patriot Act extension bill to tighten when the F.B.I. may use “national security letters” — administrative subpoenas that allow counterterrorism agents to seize business records without obtaining permission from a judge. Agents use the device tens of thousands of times each year.

I know you have a lot of issues and life challenges on your plate right now, but I think it might be worth your time to follow this issue as it makes its way through committee to the President’s desk. Our technological capability to intrude far surpasses our ability to ferret out potential abuse. I think it best we ensure the FBI can do its job, but not at the expense of our our basic civil rights. Just a reminder of who is on what side on one facet of this act. That would be the provision granting immunity from prosecution from telecoms.

As a senator, Mr. Obama voted for that bill, infuriating civil libertarians.

The bill filed Sept. 17 — which is championed in particular by two Democratic senators, Russ Feingold of Wisconsin and Richard J. Durbin of Illinois — would repeal the immunity provision.

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