11 Nov 2009
Patriot Act Redux
Several provisions of the controversial law, enacted at a salvo in the so-called war on terror, are up for renewal, sparking a new debate in Washington, writes Peter A Buxbaum for ISN Security Watch.
By Peter A Buxbaum in Washington, DC for ISN Security Watch
While many of the law's provisions are not controversial, its enactment made headlines when it authorized US law enforcement to snoop through records of bookstores, video stores, and libraries, in an effort to discern who was reading or viewing what.
That provision, Section 216, or the so-called "business records" section, as well as two others, are set to expire at the end of this year unless Congress acts, sparking new debate over the balance between counterterrorism and civil liberties. Other PATRIOT Act items up for debate this year include provisions for roving wiretapping and surveillance of individual or “lone wolf” suspects who are not connected with terrorist organizations. The Obama administration is on record supporting the renewal of these provisions.
At the core of the debate lie differing attitudes toward US domestic intelligence activities. The Patriot Act allows intelligence agencies to borrow tools from law enforcement. "If we allow these procedures in criminal investigations," so the pro-Patriot argument goes, "why not make them available for counterterrorism activities?" Critics answer that intelligence investigations tend to be much more wide-ranging then their criminal counterparts, potentially allowing authorities to scoop up piles of private information on ordinary Americans.
To prevent, protect or both?
According to Ken Wainstein, a Washington lawyer and former federal prosecutor, the Patriot Act's business records provisions merely tweaked existing procedures pertaining to foreign intelligence surveillance. Under prior law, intelligence investigators were permitted to request records only from businesses defined as “a common carrier, public accommodation facility, physical storage facility or vehicle rental facility,” he told ISN Security Watch. "An agent investigating whether a terrorist had purchased bulk quantities of fertilizer to produce a bomb could not obtain the relevant records because a feed store" does not fall under any of those headings.
But Suzanne Spaulding, an attorney and former Congressional staffer, noted that, while Patriot Act procedures "attempt to mimic the use of grand jury or administrative subpoenas," there are some important differences. Criminal investigative tools require a connection with criminal activity, "not necessarily that a crime has already been committed," she explained, "but that the activity that is being investigated would violate a criminal statute."
The requirement for a criminal connection was dropped when the procedures were moved to the intelligence context. Instead, the Patriot Act business records provisions require only that the information demanded by the government is “relevant to protect against international terrorism or clandestine intelligence activities.”
"This very broad language may or may not involve criminal activity and provides potentially far greater flexibility than criminal subpoenas," said Spaulding. "This may be appropriate for the wide-ranging nature of intelligence collection, but it also provides greater opportunity for abuse and mistakes."
The same debate pertains to Section 206 of the Patriot Act, which authorized the US government to conduct roving surveillance of a foreign agent. Previously, national security investigators were required to go back to court for a new order every time a target used a different telephone, Wainstein explained. "With this new authority," he added, "they could now secure authorization to maintain continuous surveillance as a target moves from one communication device to another. This is a critical investigative tool, given the proliferation of inexpensive cell phones, calling cards, and other innovations that make it easy to dodge surveillance."
But Spaulding contends that some important safeguards were lost in the transition between criminal and intelligence wiretapping. "In a criminal investigation," she explained, "roving wiretap applications must identify the target of the surveillance. [Intelligence] roving wiretaps need only provide a description of the target if the identity is not known. This less rigorous standard increases the prospect that the government may wind up mistakenly intercepting communications of innocent persons."
The power of one
Wainstein also defended the continuation of the Patriot Act's "lone wolf provision," which authorizes the tracking of non-US citizens acting alone to commit acts of terrorism that are not connected to an organized terrorist group or foreign power. This provision was meant to combat al-Qaida, "a network whose membership fluctuates with the shifting of alliances between regional groups," he contended. "We also face the specter of self-radicalizing foreign terrorists who may not be part of a particular terrorist group, but who are nonetheless just as dangerous."
But Spaulding argued that lone wolf undermined the entire US foreign intelligence surveillance scheme. "Individuals acting entirely on their own simply do not implicate the level of foreign and military affairs to justify the use of this extraordinary foreign intelligence tool," she said.
The justification for obtaining a surveillance warrant under the earlier practice was that the subject was connected to a foreign power or group, explained Ken Gude, associate director of the international rights and responsibility program at the Center for American Progress, a left-leaning Washington think tank. "Traditional criminal wiretaps are more appropriate when no evidence links the person to a foreign terrorist group," he added.
Patriot Act proponents argue that it is time to institutionalize its counterterrorism tools. "Congress should resist initiatives that would repeal or erode key provisions of the Patriot Act," said Jena Baker McNeill, a policy analyst at the Heritage Foundation, a conservative Washington think tank. "Despite repeated attempts to demonstrate abuse, little evidence has ever been proffered to demonstrate any Patriot Act misuse. The act has been narrowed and refined continuously, contributing to the fact that no single provision of the Patriot Act has ever been found unconstitutional."
But for Spaulding the issue is less the constitutionality of the Patriot Act than its wisdom. "Intelligence operations are often wide-ranging rather than specifically focused, creating a greater likelihood that they will include information about ordinary, law-abiding citizens," she said. "They are conducted in secret, which means abuses and mistakes may never be uncovered and they lack safeguards against abuse.
Peter Buxbaum, a New York- and Washington-based independent journalist, has been writing about defense, security, business and technology for nearly 20 years. His work has appeared in publications such as Fortune, Forbes, Chief Executive, Information Week, Jane’s Defense Weekly, Military Information Technology, Homeland Security, and Computerworld. His website is www.buxbaum1.com.