Sunday, October 25, 2009

An Unpatriotic Act

Today's Los Angeles Times has a totally mealy-mouthed editorial on the Patriot Act. Oh, the "center-left" editorial board got some of it right, but it apparently still doesn't get that the Patriot Act, the entire act, not just those provisions about to expire and not just the national security letters, was among the most devastating assaults on constitutional guarantees in our history.

The editorial was right to concentrate on the national security letters, that I will grant, but a more helpful explication would have made it clear that those letters are emblematic of just why the entire act is blatantly unAmerican. Instead, the editorial board chose to nibble along the edges, much the same way Congress is doing.

The Patriot Act's greatest threat to personal privacy lies not in any of the provisions set to expire but in the law's expansion of the use of national security letters, subpoenas that allow the FBI to obtain records without a warrant. In 2008, the FBI issued 24,744 letters involving the records of 7,225 people. Not surprisingly, there have been abuses. In 2007, after an investigation of four FBI offices, the Justice Department's inspector general found irregularities in 22% of documents related to the issuance of national security letters. Last year, he found that the FBI had made "significant progress" in correcting violations.

Even so, the criteria for issuing the letters are too vague. At present, the government must merely certify that the information sought is relevant to an authorized investigation. The bill approved by the Judiciary Committee would increase the burden on the government slightly by requiring a written statement of specific facts demonstrating relevance. A narrower amendment by Feingold and Durbin -- which would have required issuance of national security letters to be related to a suspected foreign agent or terrorist or a possible confederate -- was rejected by the committee. It should be added on the Senate floor or in an eventual conference with the House.

The other problem with national security letters is that the companies or other institutions that receive them are not allowed to reveal that fact publicly, though they can appeal them in a closed hearing in federal District Court. Feingold proposed that the government certify that disclosure of the request would result in serious harm, and that the gag be lifted in a year's time unless the government presented new evidence that secrecy was necessary. The final version of the Patriot Act extension legislation should include those safeguards.

National security letters are nothing more than a way for the government to avoid the oversight of the judiciary with respect to search and seizure. They replace the warrants, applied for with an affidavit signed under penalty of perjury that there is good cause for the search and then reviewed by a court. That the Justice Department's inspector general found evidence of abuse was no shocking revelation. It was expected. The FBI didn't and still doesn't care because its agents will get away with such abuse 90% of the time, primarily because of the secrecy surrounding them.

These provisions don't need to be tinkered with by inserting "safeguards;" they need to be repealed in toto, just as the rest of the Patriot Act should. The 109th Congress, pushed against the wall by the Bush-Cheney White House, passed the act in response to 9/11, an attack that the CIA and the FBI had warned the president about a month before it happened. That information wasn't garnered with national security letters or warrantless wire taps. The attack was successful because a president was too lazy, too stupid, and too incompetent to listen to his own government's briefing.

The 110th Congress, with a Democratic majority did nothing but allow for expansion of those unconstitutional police powers, and the 111th Congress hasn't seen any need to rectify matters so far either. And they won't, unless they are pressured to do so. Weak editorials such as this aren't going to provide any pressure.

What a wasted opportunity.

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Anonymous PeasantParty said...

Yeah. What a waste of paper and ink. The Patriot Act was nothing more than a way to constrict any truth seekers or desent from the citizens. Good Catch on that article!

12:53 PM  

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