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Bad Ideas: Then and Now

The Obama administration has sent a letter to the Senate Judiciary Committee expressing it’s desires to renew three provisions from the Patriot Act and related legislation currently destined to sunset on December 31, 2009 (Excerpts follow):

1. Roving Wiretaps, USA PATRIOT Act Section 206 (codified at 50 U.S.C. §
1805(c)(2)

We recommend reauthorizing section 206 of the USA PATRIOT Act, which provides for roving surveillance of targets who take measures to thwart FISA surveillance. It has proven an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders.

2. “Business Records,” USA PATRIOT Act Section 215 (codified at 50 U.S.c. §
1861-62)

We also recommend reauthorizing section 215 of the USA PATRIOT Act, which allows the FISA court to compel the production of “business records.” The business records provision addresses a gap in intelligence collection authorities and has proven valuable in a number of contexts.

3. “Lone Wolf,” Intelligence Reform and Terrorism Prevention Act of 2004
Section 6001 (codified at 50 D.S.C. § 1801(b)(1)(C))

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 defines a lone wolf’ agent of a foreign power and allows a non-United States person who “engages in international terrorism activities” to be considered an agent of a foreign power under FISA even the specific foreign power (i.e., the international terrorist group) remains unidentified.

Although my post is titled, “Bad Ideas: Then and Now”, I don’t have a problem with the renewal of the first “roving wiretaps” provision. It’s easy to picture a suspect using a new disposable cell phone every day and it seems unusually burdensome to have to go and get a warrent for each and every phone number. In this case, it seems like the warrant should follow the person and so as long as that warrant is properly granted, I don’t have a problem with it.

But the other two provisions were bad ideas when they were first proposed, and they still are. Just because it’s Obama rather than Bush calling for their renewal doesn’t make them any better.

The Section 215/Business Record/”Library record” provision is very bad for two reasons — 1) The definition of business record is very broad and has been construed broadly enough to call for library and bookstore records; 2) The FISA Court isn’t really independent. It very rarely denies any requests put before it. It’s true that even the FISA court eventually rebuked the Bush administration for some of its actions, but it is a very rare thing.

The lone wolf provision seems like a bad idea for two reasons — 1) It is literally a law in search of a problem. The DOJ admits its never needed to have the provision before now, it just wants to have it handy, and 2) It seems like it’s sole purpose is to strip non-citizens of their 4th amendment rights without regular court proceedings. The DOJ letter claims that the lone wolf provision would only be used in very specialized circumstances where they “knew” the person was a terrorist. But if they had that much information, why couldn’t they get a regular probable cause warrant? It doesn’t make sense to me.

It will be interesting to see how this plays out in Congress. On the one hand, Congressional Republicans were in the forefront of giving us the Patriot Act in the first place. They will look like flip-floppers if they oppose these provisions now, after talking up their essentialness to national security for the past seven years. On the other hand, many of them have been making Obama out to be a dictator. If you believe that, why give him more powers? Can they support Obama on Patriot renewal while maintaining the loyalty of their base?

In the coming weeks I’ll be writing my Congressional delegation to resist renewals of anything but roving wiretaps and encourage you to do the same.

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