Patriot Act

National security is a tough business.  How do we preserve our ability to fight our nation's enemies and disrupt their planned attacks while also preserving the rights and freedoms that we hold dear?  It's a tough balancing act.  One piece of wisdom from our founding fathers, though, is the concept of checks and balances; the idea that different branches of government should oversee each other, rather than each policing itself.  The results of the Patriot Act, enacted shortly after 9-11, demonstrate why this is a good idea.

First, you have to understand the normal procedure for obtaining a search warrant, which is generally required before going into someone's home to collect evidence, obtaining records of their business dealings from third parties, or placing a wiretap on their telephone line.  The police normally do some investigation first, in ways that do not require intrusion on someone's rights, in order to get some idea who they can reasonably suspect committed the crime.  If they don't get enough for a conviction from this, they try to figure out what evidence might exist that they don't have, and where they can find it. 

They fill out a form indicating where they want to search, including their supporting evidence, witness statements, and what they expect to find and seize in the search, then submit that form to a judge.  The judge looks over their information and makes sure that they have enough evidence to meet "probable cause"; if they do, he signs the warrant and the police go collect the evidence. 

In practice, judges rarely say no, but the simple act of preparing their evidence for review by a mostly-independent third party means that it doesn't get done casually; and the defendent in any resulting case will have a record of what the police thought they had at the time of the search and can challenge the warrant if it does not meet the probable cause standard.

The Patriot Act changed the rules, at least for terrorism investigations.  The FBI are now allowed to write a "National Security Letter" when requesting business records.  The letter does not go before a judge.  It imposes a gag rule upon the recipient, preventing them from informing anyone of the request (which also has the practical effect of preventing them from obtaining legal assistance).  It can request virtually any information, up to and including a list of which library books you have read or websites you have visited.  There is no requirement to list the evidence used to generate the letter, making the request difficult to challenge in court later. 

The basic idea is to treat terrorists like spies -- both are agents of foreign powers rather than individuals.

Now, we're learning that the FBI has systematically abused that process:

In his first report on NSLs, released in March 2007, Inspector General Glenn Fine inspected a few hundred NSLs issued by the FBI between 2003 and 2005 and found dozens that had been issued "improperly." Given that a total of 143,000 NSLs were issued during that period, the results suggested that hundreds, and probably thousands, of improper NSLs were issued from 2003 to 2005.

That's a lot of terrorists.  But are they really all terrorists?

For example, in last year's report, the inspector general recommended that the FBI implement a system to tag information derived from national security letters so they could be distinguished from data gathered using ordinary investigative activities. That would assist FBI agents in ensuring that information ostensibly obtained for anti-terrorism or counter-espionage purposes is not used for ordinary criminal investigations. But an FBI working group concluded that such tagging would be burdensome and would provide few privacy benefits. Last week's report disagreed, urging the FBI to "give additional consideration" to the issue.

This is important: the FBI can issue broad NSLs to obtain vast amounts of information, which they DO NOT TAG in any way to indicate the legal process they used to collect it.  They can then use that information to prosecute ordinary people for ordinary crimes -- violating their Constitutional rights.

These results suggest that procedural reforms within the FBI will never be sufficient to ensure that the law is followed. FBI personnel will inevitably be biased in favor of their fellow FBI officials. The creation of the FBI's Office of Integrity and Compliance is especially ironic because the federal government already has an "integrity and compliance" unit. It's called the judicial branch. Rather than trying to create a separate system of checks and balances within the FBI, the feds should take advantage of the system of checks and balances we already have. Administrative reforms are no substitute for genuine judicial oversight. Regardless of the number of layers of review, the sophistication of the FBI's tracking system, or the amount of time its personnel spend in training, there will always be a temptation to cut corners unless the issuance of NSLs is subject to scrutiny from outside the FBI hierarchy.

We need those checks and balances back in place, especially when the FBI is trying to cover up their mistakes.  No one can be trusted to police themselves when the consequence is the loss of privacy rights for everyone.  The incentive structure is simply wrong.

I've noted in the past that even if you agree with the premise that the Patriot Act's authorization of so-called "National Security Letters" for secretive investigation of alleged terrorists is reasonable, such sweeping powers demand strong oversight and serious penalties for misuse.  Since the recipients of a National Security Letter are forbidden to disclose it's existance, and the targets are generally not notified of the investigation, there is essentially no opportunity to contest the matter and little opportunity for abuses to come to light.

I figured it would be interesting to examine a similar area of law -- specifically, the Digital Millenium Copyright Act.  That law allows "copyright holders" (who can afford the lawyers necessary) to send letters to hosting providers who are hosting allegedly copyrighted content, requiring that the content be removed immediately.  There's no court order necessary; just the letter.  In theory, if the hosting provider determines that the content is actually not copyrighted, it doesn't have to take it down; in practice, they generally take the content down immediately and maybe put it back up eventually if the customer can prove that the complaint was inaccurate.

There are lots of DMCA letters sent to people illegally distributing copyrighted content, but there are lots sent to people who happen to be hosting content with a filename that just happens to resemble a common filename for copyrighted content, too.  The industry is not very discriminating in who they send the letters to.  The Chilling Effects project collected a number of such letters, and the University of Southern California has examined the collection (full version) and found that nearly a third of the letters demanded removed of the content despite a clear legal defense.

We know that the FBI has issued over 30,000 National Security Letters to date.  If about the same rate applies, we can expect over 10,000 National Security Letters to have been issued for perfectly legal behavior.  But we will likely never know about it, because no one is allowed to talk about it, and there is absolutely no oversight.

Dafydd is doing the non-libertarian thing and suggesting that the Patriot Act be made permanent:

This should be a no-brainer: nobody has shown any violation of civil liberties from use of this act; the Patriot Act should simply be made permanent, all of it. Yet evidently, simplicity is not a virtue to these complex and nuanced senators. And shame on the three Republicans for aping the Left's habit of attacking the president instead of arguing their case before the Ameican people.

One of the major provisions of the Patriot Act is lack of notification.  Those who are investigated under its provisions are not notified while the investigation continues, and those who are served with subpeonas as part of the investigation aren't allowed to talk about it.  These provisions make it very, very difficult to show abuses of civil liberties, and impossible to claim that none have occurred simply because none have been reported.

While investigations of foreign intelligence assets need to remain highly secretive by their nature, and investigations of terrorists certainly fall under that same category, there must be effective oversight -- oversight that is not provided by a secret court rubberstamping national security letters on the basis of secret evidence.  We need to do better than that. 

The Gun Owners of America are urging you to contact Congress regarding the Patriot Act renewal legislation.  Here's why:

Capitol Hill sources have told GOA there is a provision in this bill (Section 215) which would allow the FBI to get a secret court order to seize ANY business records it believes would be relevant to an anti-terrorism investigation... without having to make the case that the gun records they're confiscating have any connection to a suspected terrorist.

Section 215 is the same provision that allows for seizure of library records (what you're reading about) and similar privacy threats.  While passing the Patriot Act in the wake of 9-11 could possibly be excused as an emergency situation, it has now been over 4 years since that event.  How many terrorists -- real terrorists, not prostitutes or drug users -- have been captured and convicted because of evidence obtained through section 215?

The answer seems clear: not enough to justify abrogating our Constitutional rights.

If this journalist's story is true, it's repulsive, and it's a clear sign that the government has gone too far.  It is not appropriate for the FBI to maintain dossiers on people who are not under suspicion of a crime.

The Washington Post has the scoop on the scope of the government's expanding use of "National Security Letters", a warrantless demand for business records (up to, and including, library records):

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

Hat tip to Reason for the story.  There is no question that we are facing a substantial threat from the decentralized counterpart of a foreign intelligence agency.  However, without oversight, abuses are inevitable.

Within the next few days, the House will face another watershed vote in the fight to keep us both Safe and Free.

As early as tomorrow, the House is likely to vote on an amendment to the annual appropriations bill for the Justice Department that would forbid the government from using any money to use the USA PATRIOT ACT to search your library and book-buying records without probable cause of crime.

Last year, the House stunned the Ashcroft Justice Department by overwhelmingly voting for an amendment that would repeal "sneak and peek" provisions of the Patriot Act. Unfortunately, the congressional leadership killed the amendment before it became law.

Act Now! This week, the House can send another important message to the Bush Administration, which is pushing hard to have the Patriot Act made permanent. Click below to read more about the freedom to read amendment and to send an email to your Member of Congress:

This call to action from the ACLU makes a good double-play. Call the Senate to encourage stiff resistance to the Assault Weapons Ban, and then call the House to support your freedom to read. You're already by the phone, why not do both?

Saying the Patriot Act has helped prevent further terrorist attacks on America, Attorney General John Ashcroft yesterday called for even tougher law-enforcement tools.

Ashcroft argued that law enforcement needs more powers, not fewer. Among those he called for are the power for investigators to subpoena business records in terrorism investigations on their own rather than through a grand jury and a federal death penalty for some terrorism attacks in which people are killed.

Well, let's see here. Where to begin...

Let's start with the whopper. Apparantly, Ashcroft thinks that the Patriot Act has been responsible for preventing further terrorist attacks. Just a few months ago he was claiming that parts of that law haven't even been used. You can't have it both ways, Ashcroft; either the law has been used, possibly in a manner offensive to the Constitution, or it hasn't. Not both. Of course, there's ample wiggle room in his statements; I just find it amusing the way he dances between interpertations depending on what he's trying to convey.

If he's right, though, and the Patriot Act has prevented terrorist attacks, it's funny that very few of those attacks have shown up in the news. Sure, there have been some arrests -- but no details on "attacks" that were "stopped". If he's going to claim credit for stopping attacks he damn well needs to specify some of the stopped attacks. But then, under the Patriot Act, those details are secret.

In case you haven't noticed, secrecy is one of the overriding themes in the Patriot Act. You can get secret authorization to secretly search a suspected terrorist's home and business records based on secret evidence, and the people you have to talk to to get the information have to keep it a secret. Of course, if it's all secret, there's no way to tell if it actually works. That's part of the point.

Ashcroft is also asking Congress to allow judges to impose the death penalties for those convicted of terrorist activities that do not now have death penalty specifications.

Y'know, maybe I just don't have access to all of Ashcroft's secret evidence... but I suspect that suicide bombers aren't deterred by the threat of the death penalty. Worse, I suspect that most of the terrorists would rather be executed than spend their life in prison. Now, I agree that it's kind of pointless to lock up terrorists for their natural lives; much simpler to execute them (preferably quickly and humanely, with due process of law as appropriate). But I'm concerned about why there needs to be new law to accomplish this. Most terrorist acts are already criminal acts that carry the death penalty.

But I've got an inkling of why he wants this particular change, and it's not pretty. You see, under the Patriot Act, just about any criminal act is also an act of terror, if the crime was committed with intent to influence the policy of the United States. And there have been a number of incidents where government attorneys have charged local criminals with terrorism based om that law and similar laws -- charges that are completely unjustified by any rational analysis.

So what's the deal? Why does Ashcroft want a blanket death penalty for terrorist acts? Simple: if any crime can be spun as a terrorist act, and that is the case, then the death penalty becomes a prosecutorial bargaining stick. It's like a great big club that Ashcroft can threaten "terrorists" and minor criminals with. "Confess, and I'll take the death penalty off the table". It removes the need for Ashcroft to actually convict his "terrorists" of anything; lots of them will confess to anything so long as they can avoid being executed.

Whether or not they're guilty of anything.

And that sort of confession will inevitably generate lots of good publicity for Ashcroft and Bush in an election year. The only reason I can think of for Ashcroft to want that change in the law is to provide some convenient confessions for the news cameras, since he apparantly is unable to provide any real terrorists, at least not in the US.

I don't think providing political cover for Ashcroft and Bush is a suitable reason to expand the death penalty. What say you?

The American Library Association said Friday it will survey thousands of libraries to determine how often federal agents have used the USA Patriot Act to try to secretly obtain patrons' records.

The association wants the information in its fight to bring about changes to the controversial law, said Emily Sheketoff, executive director of the group's Washington office.

The act "jeopardizes library patrons' privacy in a way that has never been done before," she said at the start of group's annual conference in Orlando.

The ALA have been staunch opponents of the Patriot Act, and they deserve some applause.

While activists and politicians work to repeal or change parts of the Patriot Act that they say violate constitutional rights, Patriot Act II legislation -- which caused a stir when it came to light last year -- is rearing its head again in a new bill making its way through Congress.

The bill would strengthen laws that let the FBI demand that businesses hand over confidential records about patrons by assigning stiff penalties (up to five years in prison) to anyone who discloses that the FBI made the demand. The bill would also let the FBI compel businesses to cooperate with record requests, and it would expand the government's secret surveillance powers over noncitizens in the United States.

"There is no reason for this legislation," said lawyer Chip Pitts, head of the Bill of Rights Defense Committee of Dallas and a former constitutional law professor. "Given the expanse of powers and secrecy already granted in the Patriot Act, and given the unclear security benefits and possible security detriments of that legislation, why do we need a further amendment of the law to grant more powers to the government?"

When we caught them trying to sneak the whole thing into law, the issue got out of the news real fast. But the people behind the first bill weren't about to give up. They decided to sneak it through in little pieces, hoping to attach the provisions they wanted to other, more innocuous legislation and avoid the media firestorm. They have already passed some of those pieces. Now they want even more.

Some Members of Congress are trying to expand the USA PATRIOT Act by slipping language into an intelligence agency bill that is debated and amended largely behind closed doors. We need to tell the Intelligence Committees and other Members of Congress that these issues are too important to be debated and decided in secret!

Any expansion of the PATRIOT Act is premature at this point. The "sunset" provision of the PATRIOT Act, under which a handful of its provisions expire unless renewed by Congress, doesn't take effect until December of next year (2005). Congress has not finished its oversight work to determine how the new powers in the PATRIOT Act have been used and whether they were needed to begin with. As part of that process, and as part of any further changes to the surveillance laws, Congress should include oversight mechanisms and judicial checks and balances. That's not what the authors of this sneak move have in mind.

This is your chance to have some impact. Call your legislator about the Patriot Act expansions -- and remind him to resist the Assault Weapons Ban when you do.

The objective of the Patriot Act [is to make] the population visible and the Justice Department invisible. The Act inverts the constitutional requirement that people's lives be private and the work of government officials be public; it instead crafts a set of conditions that make our inner lives transparent and the workings of government opaque. - Elaine Scarry, "Acts of Resistance," Harper's Magazine, May 2004

What puzzles me about the current situation is that the administration knows damn well that the Patriot Act is unpopular and probably costing them votes from people who care about liberty. They have acknowledged the unpopularity of the measures by splitting Patriot II up into many different bills, and by their funding games with Total Information Awareness. And yet they continue to soldier on. Are we witnessing the birth of martial law by a government with demonstrated unconcern for the will of the people?

The Republican-led House bowed to a White House veto threat Thursday and stood by the USA Patriot Act, defeating an effort to block the part of the anti-terrorism law that helps the government investigate people's reading habits.

The effort to defy Bush and bridle the law's powers lost by 210-210, with a majority needed to prevail. The amendment appeared on its way to victory as the roll call's normal 15-minute time limit expired, but GOP leaders kept the vote open for 23 more minutes as they persuaded about 10 Republicans who initially supported the provision to change their votes.

"Shame, shame, shame," Democrats chanted as the minutes passed and votes were switched. The tactic was reminiscent of last year's House passage of the Medicare overhaul measure, when GOP leaders held the vote open for an extra three hours until they got the votes they needed.

This sucks. We won this one and the fuckers stole it! I'm including a list of representatives who switched their votes from yes to no; we should complain to them about it, especially if you happen to be a constituent for any of them. Links below are to the contact page of the official website of each representative. I suggest you let them know that you're not pleased with their recent waffle.

• Michael Bilirakis of Florida
• Rob Bishop of Utah
• Tom Davis of Virginia
• Jack Kingston of Georgia
• Marilyn Musgrave of Colorado
• Nick Smith of Michigan
• Thomas Tancredo of Colorado
• Zach Wamp

Sir,

I am extremely displeased with your decision to snatch defeat from the jaws of victory in a recent vote concerning the Patriot Act. Although you initially voted correctly to limit the powers granted to government under the Act, you then caved to politically-motivated pressure from the Bush administration -- an administration that has been responsible for deliberate civil rights abuses up to and including torture. You had an opportunity to take a stand for freedom and liberty, a stand that would have made the founding fathers of our nation proud, and instead you have chosen to cower in craven terror at the first hint of opposition. If you cannot stand up for your views in the face of opposition from the Bush Administration, how can you possibly stand up for America in the face of true terrorism?

Liberty must not be a victim in the war on terror. I am ashamed of you, and I expect better.

Get the word out. We have no use for craven cowards. Leave a comment after you've contacted the Representatives above.

UPDATE: Lew Rockwell has a slightly more detailed account of his this trick works.

Immediately after the brutal terrorist attacks of September 11, 2001, both Congress and the Administration reexamined the legal tools available to investigators and prosecutors in the fight against terrorism. Taking into account the lessons learned from past experience, they found these tools to be inadequate. Acting swiftly and responsibly to correct numerous deficiencies, Congress and the Administration set out to update, strengthen, and expand laws governing the investigation and prosecution of terrorism within the parameters of the Constitution and our national commitment to the protection of civil rights and civil liberties. As a result of those efforts, Congress overwhelmingly passed, and on October 26, 2001, the President signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ( USA PATRIOT Act or Act ).1

The Department of Justice has issued a report on the Patriot Act, and I've got a mirrored copy in case theirs goes away. The above is from the introductory paragraph. It's an interesting way to characterize a law that had already been written by the government's lawyers well before 9-11 occurred (they were just waiting for the right moment to introduce it), and was passed with many congressman unable to read the bill before voting.

Bear in mind that this report is presenting the Administration's case. It's not an unbiased report at all. I'm going to fisk it, but one of the dangers of fisking is that it's hard to criticize what isn't mentioned at all.

This legislation provided our nation s law enforcement, national defense, and intelligence personnel with enhanced and vital new tools to bring terrorists and other dangerous criminals to justice. As President Bush stated upon its signing, the Act takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike.

Funny, they didn't have much problem identifying several of the 9/11 terrorists before they struck. There didn't seem to be much disruption going on, though. It wasn't for lack of investigative power; it was for political correctness. It wouldn't be politically correct to investigate Arabs who don't want to take off or land, after all.

Since the USA PATRIOT Act was enacted, the Department of Justice -- ever cognizant of civil liberties -- has moved swiftly and vigorously to put its new tools into practice. As of May 5, 2004, the Department has charged 310 defendants with criminal offenses as a result of terrorism investigations since the attacks of September 11, 2001, and 179 of those defendants have already been convicted.

You mean like the freedom to take pictures of landmarks from public land without being harassed by the police? How about people who were beaten in police custody?

For a variety of reasons, this report cannot describe every case in which the USA PATRIOT Act has been instrumental. Some of these cases, for instance, are ongoing and cannot be publicly discussed. Others, particularly including a number of terrorism- related cases, cannot be discussed usefully without disclosing classified information. Therefore, this report is not a comprehensive discussion of the use of USA PATRIOT Act authorities, but is instead an unclassified overview of the usefulness of those authorities.

What they mean is, "We left out the embarassing ones."

As the Attorney General has affirmed, The fight against terrorism is now the first and overriding priority of the Department of Justice. 3 The Department s efforts over the past twoand- a-half years have been characterized by an unwavering commitment to two complementary objectives: securing the United States against the threat of terrorist attacks and preserving the rights and liberties that are guaranteed to every American. Security and liberty are interrelated and mutually reinforcing, not conflicting, goals. Under the leadership of the President and the Attorney General, the Department of Justice has been, and remains, dedicated to using the USA PATRIOT Act in service of both aims.

So much so that Ashcroft recently launched a 32-person task force investigating internet pornography. Yeah, cracking down on terrorism does make it easier to crack down on free speech.

Anyone know how the Patriot Act can be used to serve the aim of liberty, and preserve the civil rights and liberties of Americans? I'd love some ideas, because I just don't see it. I mean, really. "Ma'am, we wrote a National Security Letter to your library to see what books you checked out. We found you're not reading enough subversive material, so we can't arrest you for anything yet. So, me and the guys, we figured we'd drop by and let you know that you can read all the subversive material you want. Go right ahead, it's OK. We have freedom and liberty in America. And we really need an arrest to justify this surveillance."

Prior law, as interpreted and implemented, had the effect of sharply limiting the ability of law enforcement and intelligence officers to share information, which severely hampered terrorism investigators ability to connect the dots.

Actually, what they really mean is, "We instituted a really stupid policy, going beyond the requirements of the law, that prevented us from watching terrorists we knew were in the country when it was misinterperted to be even more strict by a desk jockey at the FBI who didn't want to get up off his ass to ask a judge for a search warrant."

This case involved several residents of Lackawanna, who traveled to Afghanistan in 2001 to receive training at an al Qaeda-affiliated camp near Kandahar. The investigation of the Lackawanna Six began during the summer of 2001, when the FBI received an anonymous letter indicating that these six individuals and others might be involved in criminal activity and associating with foreign terrorists.

They needed an anonymous tip after the people flew to Afghanistan to attend an Al Qaeda training camp?

Prosecutors in New Jersey have used section 373 of the USA PATRIOT Act to bring charges against Yehuda Abraham, an unlicensed money transmitter whose services were used by Hemant Lakhani, an individual attempting to sell shoulderfired surface-to-air missiles to terrorists with the understanding that they were going to be used to shoot down American commercial airliners. Lakhani employed Abraham s money transmitting services to funnel, from the United States to an overseas account, money being paid by a cooperating witness, acting under the direction of federal law enforcement officers, as a down payment on the first missile. As a result of the USA PATRIOT Act, prosecutors were able to quickly put together an effective case against Abraham for operating an unlicensed money transmitting business,

So, an informer runs a sting operation using some foreign terrorist, and tries to buy missiles with the money. But they charge only Abraham, and only with operating an unlicensed monetary transmission service. Seems to me that Abraham probably didn't know what the money was for, or they would have charged him with something related to terrorism.

Prosecutors have also secured convictions of individuals operating unlicensed money transmitting businesses that sent money from the United States to Iraq, Yemen, the United Arab Emirates, and India. In Boston, for example, the successful prosecution of Mohammed Hussein, the co-operator of an al-Barakaataffiliated money transmitting business, was based on both pre- and post-USA PATRIOT Act violations of 18 U.S.C. § 1960. In 2000 and 2001, Barakaat accepted approximately $3 million in customer deposits and wired those funds to the United Arab Emirates without a license.

He wired money without a license. Horrors. It's one thing if the money is going to a terrorist, and the middleman knows it. But this is just trivial.

In an effort to stem the flow of money to terrorists, section 371 of the USA PATRIOT Act made bulk cash smuggling a serious criminal offense... Prosecutors have used section 371 of the USA PATRIOT Act to obtain the forfeiture of millions of dollars connected with terrorism and drug dealers.

Bulk cash smuggling, huh? Bet it helps with the budget, too.

Section 319 authorizes the government to seize funds subject to forfeiture that are located in a foreign bank account by authorizing the seizure of foreign banks funds that are held in a correspondent U.S. account. This is true regardless of whether the money in the correspondent account is directly traceable to the money held in the foreign bank account.

In other words, they can seize YOUR money because a terrorist uses an overseas branch of your bank.

The USA PATRIOT Act also strengthened criminal laws protecting against cyberterrorism. Section 814 of the USA PATRIOT Act increased the maximum penalty for intentionally damaging a federally protected computer from a prison term of five years to a prison term of 10 years and raised the maximum penalty from a prison term of 10 years to a prison term of 20 years for intentionally or recklessly damaging a federally protected computer after having previously been convicted of computer abuse.

It's a lot easier to pass a new law than it is to actually make government computers secure, at least if you don't work for the NSA... but I can guess which one would be more effective.

-15- In 2002, a package intended for a New Jersey man was mistakenly delivered to another person. Inside the package were fraudulent identification documents. Law enforcement investigators learned that the identification documents had been sent by a man in Texas who was found to possess a large quantity of weapons, including chemical weapons such as sodium cyanide. A subsequent search of the New Jersey man s residence revealed many guns and gas masks, numerous knives including those made to avoid setting off a metal detector, a crossbow, and thousands of rounds of ammunition including hollow point and armor piercing bullets. As a result of section 219, law enforcement agents were quickly able to secure a search warrant in New Jersey for a search of Vermont properties associated with the New Jersey man, rather than having to go through the additional time and effort necessary to secure such a warrant in Vermont. The searches in Vermont subsequently revealed over 10,000 rounds of ammunition and over 70 firearms including an AK-47 gun, an Uzi firearm, and the barrel of a .50-caliber weapon. Investigators believe that their ability to search the Vermont properties quickly was important in the recovery of the weapons and ammunition. The New Jersey man subsequently pleaded guilty to aiding and abetting the transportation of false identification documents.

The effect of the Patriot Act in this case was to enable the government to quickly obtain a search warrant for the Vermont properties... where they found a bunch of legal items. Yeah, I can see how that helped them.

As a result, in section 210 of the USA PATRIOT Act, Congress authorized the use of administrative and grand-jury subpoenas to obtain information about temporarily assigned network addresses and users billing records from electronic communications service providers without requiring investigators first to undertake the timeconsuming step of applying to the courts.

Those pesky time-consuming courts! It's called a warrant, and it's a Constitutional requirement -- not an optional extra. Congress does not have the power to waive the warrant requirement!

To be continued...

This is a detailed analysis of the actual text of the infamous Section 215 of the Patriot Act. That's the "secret searches of library records without judicial review" section, in case you didn't know. The analysis appears rational, but there are some significant criticisms that it fails to address. I'll summarize them here:

• Judicial review, even if technically present, is a rubber stamp. It's a rubber stamp even in normal trials, but the FISA court that has jurisdiction over these requests has never once refused a request.
• Secrecy provisions hamstring opposition. You can't publicize the request. You can't ask a lawyer if the request is valid. You can't even verify the reports provided by law enforcement against publicized accounts.

"Trust, but verify", as the saying goes. Well, under the Patriot Act, there's no choice but to trust: the judicial branch doesn't verify and Congress has to believe the reports they are given.

Earlier this month, the Republican leadership in Congress violated its own rules to ensure a slim defeat for a measure that would have protected your privacy in bookstores and libraries.

The measure -- an amendment offered by Rep. Bernie Sanders (D-VT) -- would have forbidden the government from funding the use of powers granted by the infamous Section 215 of the Patriot Act to demand your personal records from bookstores and libraries. These new powers give law enforcement the ability to obtain -- without an ordinary criminal subpoena, search warrant, or probable cause ? a secret court order allowing access to all of your personal records -- including your library records, the books you purchased, your medical records, your finances and even the complete history of your web surfing. The Sanders Amendment would have been an important first step at rolling back part of these overreaching surveillance powers.

Although the measure initially garnered a majority with almost all Democrats and 29 Republicans voting ?yea,? Republican leaders kept open the vote for more than 30 minutes ?- twice the allotted time ?- so they could persuade 11 members to switch their votes. The amendment then failed on a vote of 210 to 210.

The ACLU is getting a bit kinky with this one, but that's OK. This is a good way to find out how your Representative voted, and make your opinion heard. I've previously posted a call to contact specifically those Representatives who flipped their votes under pressure; this effort applies to everyone who cares about the issue, regardless of how your Representative voted and regardless of whether they caved under pressure.

If you include in your email that you don't want the Assault Weapons Ban renewed in any form whatsoever then the politicians might start to realize that there is a core constitutency in the nation that cares about freedom, and isn't easily shunted into a democratic or republican slot.

The EFF has a series of articles discussing the provisions of the Patriot Act that have a sunset date in 2005. They have detailed explanations of each section that they have covered so far, including the most important part: how that provision threatens liberty in the United States, and why it must be allowed to expire.

It looks like death was just the beginning for the never-introduced "Domestic Security Enhancement Act of 2003," otherwise known as "PATRIOT II." As the Associated Press, LA Times, and Washington Post reported last week, lawmakers are circulating draft legislation that breathes new life into some of the most threatening provisions in PATRIOT II. The draft legislation is meant to implement intelligence reforms as recommended by the 9/11 Commission Final Report, but goes far beyond those recommendations -- including giving federal agents the power to use secret foreign intelligence warrants and wiretap orders against people unconnected to any terrorist group or foreign nation. In other words, it proposes lowering the legal standards for surveillance so that the government has the same leeway to spy on people like you and me as it does those suspected of being international agents or terrorists.

The Electronic Frontier Foundation warns us that the government is trying to bring PATRIOT-II back from the dead... as predicted. They keep telling us that these things aren't coming back, and they keep coming back. It's like a bad zombie film, where the creatures just won't die.

Part of the Patriot Act, a central plank of the Bush Administration's war on terror, was ruled unconstitutional by a federal judge on Wednesday.

U.S. District Judge Victor Marreo ruled in favor of the American Civil Liberties Union, which challenged the power the FBI has to demand confidential financial records from companies as part of terrorism investigations.

The ACLU sued the Department of Justice, arguing that part of the Patriot legislation violated the constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards. The judge agreed, stating that the provision "effectively bars or substantially deters any judicial challenge."

Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information.

We can fight terrorism without abandoning the civil rights protected by our Constitution.

UPDATE: Orin Kerr reports that this is not actually striking down any elements of the Patriot Act, but rather strikes down part of the Electronic Communications Privacy Act of 1986. The Patriot Act amended the section that was struck down, but not significantly so.

Here's the text of the legislation.  The important points about the bill: it removes the expiration dates for the expanded powers, rather than simply extending them another 4 years; and it removes the section allowing for administrative subpeonas (ie, without a judge's signature).  There's a vote today (Weds, July 13th, 2005) in the Judiciary and Intelligence committees.

If your representative is on either one, contact them and tell them to get the expiration date put back in before any renewal passes.

Yet another hat tip to Politech.

JOHN ASHCROFT: This morning's attack confirms the worldwide terrorist threat is real. It is imminent. Our enemies continue to pursue ways to murder the innocent and the peaceful. They seek to kill us abroad and at home.

I can't believe Ashcroft is actually citing a bombing in Iraq (a recently conquered nation on the other side of the world) as a reason to retain the Patriot Act in the US! Now that, folks, is chutzpah.

The Patriot Act opened opportunity for information sharing. To abandon this tool would disconnect the dots, risk American lives, sacrifice liberty, and reject September 11's lessons.

There is nothing in the Patriot Act that would have stopped the 9-11 terrorists. Nothing. What would have stopped them? Simple: listen to your field agents. Several different field agents requested permission to obtain search warrants on some of the terrorists before the event. The request was denied despite persuasive evidence. Welcome to beaurocracy.

The cause we have chosen is just. The course we have chosen is constitutional. We did not seek this struggle, but we embrace this cause.

In a pig's eye it is, Mr. Ashcroft.

President Bush has hit the campaign trail to save the Patriot Act, which will expire in 2005. In calling for its continuation, the President said, "we can no longer rely on false hope." Which false hope is that? The hope that America's free society will protect us like it has for more than 200 years? We who love American liberty have great fear of the Patriot Act.

This is a great summary of the objectionable portions of the Patriot Act. I still find it hard to believe that Bush is defending this monstrosity. Maybe he's just listening to his staff rather than reading the bill.

It's a simple task: renewing a bank check card. But first, the Wells Fargo Bank clerk requires personal information, "to help the government fight the funding of terrorism."

How long have you been at your current address? he asks. Are you a U.S. citizen? What are your Social Security and driver's license numbers? Your date of birth? Your home phone number?

"It's part of the USA Patriot Act," explains Sherry Kamkar, the manager of the Santa Monica branch.

Take a close look at the above. Then, go read this article from Wired Magazine about "Know Your Customer", written in 1998. Recognize something?

The only thing 9-11 did for many government agencies was allow them to pass, without public comment or review, many of the regulations that the public and privacy interest groups had been bitterly opposing for years. Know Your Customer was such a program. The ACLU and EPIC strongly opposed those rules, and for good reason. Or, as the article puts it:

An alliance of conservative, libertarian, and privacy groups is mobilizing to fight the Know Your Customer plan. "The idea that the average American is going to have to justify to a federal agency where they got their money and how they used it -- and proving it to those agents -- is just beyond the comprehension of most Americans," said Lisa Dean, vice president of the Free Congress Foundation.

And guess what we have today? Exactly the regulations and privacy-invasive requirements that were being pushed prior to 9-11. This was news in 1998, three years before 9-11.

It's not about terrorists. It's about us.

In the two years since the nation began giving law enforcement agencies fresh powers to help them track down and punish terrorists, police and prosecutors have increasingly turned the force of the new laws not on al-Qaida cells, but on people charged with common crimes. The Justice Department said it has used authority given to it by the USA Patriot Act to crack down on currency smugglers and seize money hidden overseas by alleged bookies, con artists and drug dealers. Federal prosecutors used the act in June to file a charge of "terrorism using a weapon of mass destruction" against a California man after a pipe bomb exploded in his lap, wounding him as he sat in his car. A county prosecutor in North Carolina charged a man accused of running a methamphetamine lab with violating a state law barring the manufacture of chemical weapons.

In a pep talk that seemed made for television, U.S. Attorney General John Ashcroft addressed more than 150 North Carolina law enforcement and other government employees Saturday in an invitation-only ceremony. More than 100 protesters shouted slogans across the street from the Sheraton Imperial Hotel in Research Triangle Park, where the event was held. Following a ceremony that included the Pledge of Allegiance and the national anthem, U.S. Attorneys Anna Mills Wagoner and Frank Whitney introduced Ashcroft.

This is a made-for-propaganda event, complete with loyalty oaths. Sieg Heil Ashcroft!