Last Thursday the US Senate Judiciary Committee, in an 11-8 voice vote, reauthorized three sections of the USA PATRIOT Act that expire at the end of the year. Proposed changes from civil libertarians were rejected. The reauthorization now passes to the Senate floor.
The first section reauthorized the roving wiretap provision of the legislation allowing investigators to get secret US Foreign Intelligence Surveillance Act (FISA) court orders for surveillance of a specific target rather than a specific telephone number. Prior to passage of the USA PATRIOT Act, investigators were required to get a separate warrant for each number they wanted to monitor.
The second section reauthorized the FISA court ordered seizure of “any tangible things” deemed to be relevant to a terrorism- or espionage-related investigation. Anything is subject to surveillance—business records, medical records, personal financial records—anything. And it only has to be deemed “relevant” to a terrorism- or espionage-related investigation.
Finally, the Judiciary Committee reauthorized the “lone wolf” provision, allowing FISA court ordered wiretapping of a terrorism-related suspect who is not connected to any known terrorist group of foreign government. Even though the US government admits to having never used this authorization.
While several senators proposed amendments to the legislation—such as requiring a demonstrated connection between a known terrorist and a second person before allowing surveillance of the second person—the amendments were defeated after the US Justice Department held a classified briefing the day before the committee vote. Nonetheless, three Democrats and five Republicans voted against the reauthorizations: Tom Coburn (R-Oklahoma), Richard Durbin (D-Illinois), Russ Feingold (D-Wisconsin), Lindsey Graham (R-South Carolina), Charles Grassley (R-Iowa), Orin Hatch (R-Utah), Jeff Sessions (R-Alabama), and Arlen Specter (D-Pennsylvania).
Feingold was expected to submit an amendment withdrawing immunity granted the telecommunications companies who participated in President Bush’s warrantless wiretapping program, but he didn’t.
Durbin introduced an amendment that would reign in the US government’s use of National Security Letters by authorizing their use only if the investigation concerned terrorism or espionage by an agent of a foreign country. National Security Letters are notoriously used—to the tune of about 50,000 each year—to avoid having to get a FISA court order to obtain any records relevant to any government investigation. Durbin’s amendment was defeated.
Senator Patrick Leahy (D-Vermont) told Charlie Savage of the New York Times that “the committee had worked with Obama administration officials to craft the legislation, including at a classified briefing on Wednesday.” Savage reported that Feingold criticized the committee’s actions, “saying it was the job of the Judiciary Committee to find the right ‘balance’ rather than merely accept whatever the FBI and prosecutors wanted.”
Surprisingly, Senator Jeff Sessions (R-Alabama) carried President Obama’s water on the issue. “A Democratic staffer, speaking on the condition of anonymity, said Mr. Sessions’ amendments were a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday,” Savage wrote. The Obama amendments dealt almost exclusively with record keeping issues—published audits will be mandatory (previously, agency reporting was voluntary)—except for two things: limiting the surveillance of library records to individuals with a demonstrated link to terrorism or espionage and eliminating the minimization procedures associated with pen registers. Pen registers record telephone numbers received by and dialed from a target phone number. Legislators rarely point out that pen registers are also used with email and other electronic communications. Theoretically, only metadata is accessible, but that’s always been open to question.
The most likely scenario is that the US government uses pen register data for data mining purposes to identify potential surveillance targets, i.e., a fishing expedition. The Obama amendments—carried to the committee by Sessions—eliminates the requirements that the government dispose of the pen register data when done with it and the prohibition against distributing the information collected.
These reauthorizations greatly expand the US government’s ability to surveil its citizens in the name of national security.
Sessions, along with four other Republicaans, voted against against the reauthorizations.
| Democrats voting in favor | Republicans voting in favor |
|---|---|
| Benjamin Cardin - Maryland | John Cornyn - Texas |
| Dianne Feinstein - California | Jon Kyl - Arizona |
| Al Franken - Minnesota | |
| Edward Kaufman - Delaware | |
| Amy Klobuchar - Minnesota | |
| Herb Kohl - Wisconsin | |
| Patrick Leahy - Vermont | |
| Charles Schumer - New York | |
| Sheldon Whitehouse - Rhode Island | |
| Democrats voting against | Republicans voting against |
| Richard Durbin - Illinois | Tom Coburn - Oklahoma |
| Russ Feingold - Wisconsin | Lindsey Graham - South Carolina |
| Arlen Specter - Pennsylvania | Charles Grassley - Iowa |
| Orin Hatch - Utah | |
| Jeff Sessions - Alabama |
A cynic would point out that with Sessions carrying the executive branch’s amendments—which, while not exactly secret were certainly offered in less than complete transparency—Leahy wouldn’t have to answer, politically, for those changes. Leahy told Wired‘s David Kravets that “he wished ‘the American public could have seen’ the classified briefing.” Yeah, so do we. Is this what Obama means by bipartisanship? By transparency? I’m especially disturbed that both of my own senators Al Franken (D-Minnesota)—for whom I had the highest hopes—and Amy Klobuchar (D-Minnesota) voted in favor of passing the measure to the Senate floor.
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