Thursday, June 02, 2011

It really should be called the TRAITOR Act

Well, the expiring provisions of the grossly-misnamed PATRIOT Act have been renewed for another four years. The bill to do so was rammed through both houses of Congress after an agreement among the leaders of both parties of both houses to get the bill passed "with as little debate as possible."

That because, as Glenn Greenwald pointed out,
we wouldn't want to have any messy, unpleasant democratic debates over "the expanded power the law gives to the government."
The three provisions, actually two from the TRAITOR Act and one from FISA, were these:

1. Allow for roving wiretaps. Instead of wiretapping a particular phone or surveilling a particular email account, you in essence wiretap the person, following them from phone to phone and account to account. The big risk here is that officials often are not certain of the identity of the person and what phones/accounts they use, so they could easily wind up going after people who have done nothing wrong, are not suspected of having done anything wrong, and may have no connection to the actual target beyond, perhaps, a similar email address.

2. Warrants requiring the production of "any tangible thing" - any record, any whatever - deemed to be "relevant" to an intelligence or terrorism investigation. There is no requirement that the target of the warrant be suspected of any wrongdoing, only that they are in some way connected to the suspect. What's more, the materials demanded are "presumptively relevant" under the law - which means, in essence, the judge facing a request for such a warrant can't reject it. It can be modified, but there appears no way to reject it outright (which appears to make the whole "warrant" business a sham).

3. The so-called "lone wolf" provision. Traditionally, to be subject to surveillance you had to have some connection to some foreign group, power, or government. Not any more, although it's kind of hard to see how you can be involved in "international" terrorism in that case.

Facing a deadline of last Friday before the provisions expired, the fear-mongers pulled out all the stops:

FBI Director Robert Mueller and Director of National Intelligence James Clapper warned of "serious national security consequences" if there was not an immediate renewal of all three provisions.

Diane Feinstein declared that opponents wanted to strip away provision "necessary to protect the United States."

And Senate Majority Leader Harry Reek blustered that "we would be giving terrorists the opportunity to plot attacks against our country, undetected," adding that opponents were "threatening to take away the best tools we have for stopping them."

In other words, the message was Pass it now! Pass it now! Otherwise you're leaving us NAKED AGAINST THE TERRORISTS! OMG! OMG! OMG!

At the same time, soothing words were spread around by the feds, who insisted that law enforcement had used the three provisions “sparingly.” Roving wiretaps were issued only about 20 times a year, the warrants for business records less than 40 times a year on average, and the "lone wolf" authority had never been used.

Exactly how the nation will instantly go down in flames if powers used "sparingly" - or not at all - are not renewed was, of course, unexplained. As was why we are supposed to believe without question official claims that there has been no "improper use" of the powers when the DOJ's own Inspector General found just last fall that the FBI had been improperly spying on political activists.

There are two footnotes to this, one being that there are some different legal interpretations of just how extensive the government's authority is under these domestic spying statutes. What's the government's own interpretation of the extent of its powers? We don't know: It's classified. That's right: The Obama administration, the one with the candidate who denounced some of these same provisions only to embrace them when he got his hands on the levers of power, the one that pledged the most transparent administration ever, won't even tell us just how extensive it thinks its powers to spy on us are.

The other footnote is that the bill was not signed by Barack Obama, who was out of the country. It was signed by autopen. Yes, it's quite legal when done at the president's direction - but having it signed by a machine just seems both symbolic and appropriate.

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