Feds uncloak the Patriot Act

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Wed, 06 Apr 2005 19:51:55 -0500

 

Feds uncloak the Patriot Act

 

 

Feds uncloak the Patriot Act

As debate begins on portions of the law set to expire, officials

summarize how the " sneak and peek " provision has been used.

 

Tue Apr 05 12:45:00 PDT 2005

 

update More information is dribbling out about the exercise of

extraordinary powers granted to federal police nearly four years ago

as part of the war on terror.

 

As the Bush administration this week called on Congress to expand the

USA Patriot Act, it disclosed how two of the most controversial

sections of the law have been wielded by police.

 

Police invoked the Patriot Act when surreptitiously entering and

searching a home or office without notifying the owner 108 times

during a 22-month period, according to a one-page summary released by

the Justice Department late Monday. On Tuesday, U.S. Attorney General

Alberto Gonzales told the Senate that police have employed secret

court orders to obtain records 35 times so far.

 

But because the Patriot Act has scores of sections--only 16 are set to

expire on Dec. 31--some politicians are saying that even more

disclosure is needed during the congressional review of the law over

the next few months.

 

" We have heard over and over again that there have been no abuses as a

result of the Patriot Act, " Sen. Patrick Leahy, a Democrat from

Vermont, said during a hearing Tuesday. " But it is difficult, if not

impossible, to verify that claim when some of the most controversial

surveillance powers in the Patriot Act operate under a cloak of secrecy. "

 

Increased calls for openness come as the Bush administration has taken

unprecedented steps to limit public scrutiny of the executive branch.

The number of classified documents has jumped since 2001, Freedom of

Information Act disclosures have been curbed, and the wall of secrecy

surrounding the Guantanamo Bay detention camp has drawn international

condemnation. Open-government watchdog OMB Watch has said that Bush

has " vastly expanded the zone of secrecy that surrounds the White

House and most of the federal government. "

 

Even though the Patriot Act was approved by overwhelming majorities in

both chambers of Congress in the month after the Sept. 11, 2001

attacks, some legislators voted for the measure with the understanding

that key portions would be revisited in 2005. This week, the Senate

and the House of Representatives are kicking off what promises to be a

tumultuous series of hearings on the topic.

 

Both Gonzales and FBI Director Robert Mueller on Tuesday warned the

Senate that the expiring portions of the law must be renewed. Even

though Gonzales said he was " open to any ideas that may be offered for

improving these provisions, " he stressed that any changes should be

modest.

 

Mueller adopted a more aggressive tone, arguing that without the

expiring portions of the law, the FBI will be forced " to fight the war

on terror with one hand tied behind our backs. " He also called on

Congress to expand the Patriot Act, saying that the subpoena power of

the FBI should be expanded to " provide the government with an

enforcement mechanism which currently does not exist. "

 

While the FBI and the Department of Homeland Security have provided

anecdotal information about the law's use, some politicians have grown

frustrated with the lack of detailed information.

 

An analysis (PDF file) released by Sen. Jon Kyl, an Arizona

Republican, last month said: " Requests to the Department of Justice to

provide a comprehensive report assessing the effect and efficacy of

the 16 provisions of the Patriot Act subject to 'sunset' remain

unfulfilled. Such a report is a critical element in (Congress')

responsibility to provide meaningful oversight before determining

whether to change the law with respect to these provisions. "

 

" The lack of information on how the Patriot Act provisions that

expanded investigative authority are being used makes it very

difficult to understand whether they're necessary or whether they're

being abused, " said Marcia Hofmann, an attorney at the Electronic

Privacy Information Center, who filed a freedom of information request

with the FBI last month seeking those figures.

 

Sneak-and-peek

One portion of the Patriot Act that does not expire lets police

surreptitiously enter and search a home or office without notifying

the owner. That has reportedly been invoked 108 times during a

22-month period stretching from October 2001 through April 2003.

 

" Delayed-notification search warrants are used in a wide spectrum of

criminal investigations, including those involving terrorism and

drugs, " the Justice Department said in a statement. " Like any other

search warrant, delayed-notification warrants under section 213 may

only be issued after showing probable cause and obtaining the express

approval of a judge. "

 

Section 213 of the Patriot Act authorizes so-called sneak-and-peek

entries in cases where alerting someone that a surreptitious search

took place may have an " adverse result " on a police investigation.

Eventually the owner of the home or office is supposed to be notified,

though the law says that deadline can be " extended " without limit if

police make a good case for it. Sec. 213 is not scheduled to expire.

 

Even though the Patriot Act was enacted as a response to the threat of

terrorism, Section 213's powers are not limited to investigations of

terrorists or spies. Instead, sneak-and-peak searches may be used to

investigate any federal felony or misdemeanor, from firearms

violations to marijuana possession and copyright infringement.

 

Sneak-and-peek searches were used before the Patriot Acst, but their

legality was less clear. One case involved the FBI surreptitiously

entering the office of an alleged mobster to implant a keylogger that

recorded his PGP (Pretty Good Privacy) passphrase.

 

In a related 1979 case called Dalia v. United States, a majority of

the U.S. Supreme Court ruled that police could secretly break into an

office to plant a bugging device and then return several weeks later

to remove it.

 

In a dissent, Justice John Paul Stevens wrote: " Until Congress has

stated otherwise, our duty to protect the rights of the individual

should hold sway over the interest in more effective law enforcement. "

William Brennan and Thurgood Marshall joined the dissent.

 

Librarians up in arms

A section of the Patriot Act that does expire authorizes secret court

orders to obtain records or " tangible items " from any person or

organization if the FBI claims a link to terrorism. Disclosing the

existence of the order is prohibited.

 

Librarians have been especially worried about receiving a Section 215

order. The American Library Association approved a resolution in 2003

that says portions of the Patriot Act " threaten civil rights and

liberties guaranteed under the U.S. Constitution and Bill of Rights. "

(There's even an amend-section-215 Web site called ReaderPrivacy.com.)

 

Section 215 " has only been used to obtain driver's license records,

public accommodations records, apartment-leasing records, credit card

records, and r information " maintained by telephone companies

or Internet providers, the Justice Department said Tuesday. " The

department has not obtained a section 215 order for library or

bookstore records, medical records, or gun sale records. "

 

" The administration is taking claims of secrecy to new extremes, " said

Greg Nojeim, associate director of the American Civil Liberties

Union's Washington office. " The use of this power could be disclosed

regularly without any damage to national security. " (The federal

government discloses non-Patriot Act wiretap statistics every year.)

 

The Bush administration generally has defended such measures as

necessary to wage a new kind of global campaign against loosely

organized terrorist organizations. In a speech last month, Gonzales

said: " Without security, government cannot deliver, nor can the people

enjoy, the prosperity and opportunities that flow from freedom and

democracy. "

 

A coalition of liberal, conservative and libertarian groups called

Patriots to Restore Checks and Balances is backing efforts to scale

back the Patriot Act. Its members include the ACLU, the American

Conservative Union, Gun Owners of America and the Libertarian Party.

 

The coalition is planning to back legislation expected to be announced

Wednesday that would repeal portions of the Patriot Act. Sens. Larry

Craig, R-Idaho, and Richard Durbin, D-Ill., are planning to

reintroduce their Security and Freedom Enhancement Act, which failed

to win sufficient support last year.