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The Son of the Patriot Act Also Rises

Wired
By Kim Zetter
June 14, 2004

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?"

The bill, known as the Anti-Terrorism Intelligence Tools Improvement Act of 2003, or HR 3179 , was introduced last September by Rep. James Sensenbrenner (R-Wisconsin) and was co-sponsored by Rep. Porter Goss (R-Florida), chairman of the House Intelligence Committee and a possible contender to replace departing CIA chief George Tenet.

It contains four sections that first appeared in a proposed piece of legislation dubbed Patriot Act II . That proposed law was discovered last year by the Center for Public Integrity just weeks before the invasion of Iraq. Patriot Act II, or "Son of Patriot" as critics called it, was written by the Justice Department to expand Patriot Act powers, but the department was forced to shelve the proposal after news of it created an uproar.

But critics, like conservative former Rep. Bob Barr (R-Georgia), say that rather than abandoning the legislation altogether, the department has been extracting provisions and having sympathetic lawmakers slip them one by one into new bills to pass the legislation piecemeal. At least five other bills pending in Congress also contain provisions from Patriot Act II, but HR 3179 is the one that's in imminent danger of being passed under the radar.

Last year, a Patriot Act II provision was slipped into the Intelligence Authorization Act of 2004 at the last minute and passed quickly before legislators opposed to it had time to fully examine it. The Intelligence Authorization Act, an annual bill that allocates funds for intelligence agencies, is a must-pass bill that generally gets drafted and passed quickly in secrecy.

The new bill, HR 3179, was set to pass through Congress without a hearing last year, but the House Judiciary Committee, chaired by Sensenbrenner, changed its mind and held a hearing May 18. The bill is waiting for markup in that committee, but critics fear that Rep. Goss and the House Intelligence Committee will slip the bill into this year's Intelligence Authorization Act during a closed-door hearing on June 16, and pass it quickly before lawmakers can revise or further debate it.

Proponents of HR 3179 say critics are overreacting to the bill. They say the bill will simply "plug a few gaps" in the Patriot Act by establishing penalties for noncompliance that were never specified in the Patriot Act.

But opponents say the bill grants the government more power to investigate people without probable cause and to do so under a cloak of secrecy. As a result, individuals being investigated will have no chance to protest unconstitutional searches and seizures.

Under the Patriot Act and Patriot Act II provisions passed in the Intelligence Authorization Act last year, the FBI doesn't need a court order or probable cause to obtain the transaction records for patrons of libraries, Internet service providers, telephone companies, casinos, travel agents, jewelers, car dealers or other businesses.

The FBI can simply draft a "national security letter" stating records are needed for a national security investigation, without being specific about the data being sought or the people being investigated. A nondisclosure provision prevents the letter recipient from telling anyone about it, including patrons whose records may be investigated.

Under HR 3179, anyone who knowingly violates the secrecy clause could be imprisoned for up to a year, and anyone who violates it with "the intent to obstruct an investigation or judicial proceeding" could be imprisoned up to five years. The bill also lets authorities force individuals and companies to comply with security letters under contempt-of-court threats.

Jeff Lungren, spokesman for the House Judiciary Committee where the bill currently resides, said HR 3179 simply gives teeth to the Patriot Act.

"Right now you can't disclose if you receive a national security letter," he said. "But if you do disclose it, there is no penalty for that. There's (also) no stick to deal with a person that refuses to comply with a national security letter."

But Jim Dempsey, director of the Center for Democracy and Technology , said the bill tips the balance of power further into government hands while hampering the ability of people "to push back" and provide balance to government powers.

Currently, if government investigators request data that is too broad or intrusive, a company has some wiggle room to protect patrons' Fourth Amendment rights by resisting and negotiating a more targeted search, Dempsey said. But letting the FBI force cooperation while at the same time demanding secrecy and threatening imprisonment would make it unlikely that unreasonable secretive searches would ever be prevented or challenged.

"It's a way to increase the government's leverage," Dempsey said, noting that no company employee would want to go to jail for 30 days, let alone five years, to defend the privacy of the company's patrons.

Dempsey said he believes the original Patriot Act didn't specify penalties for disclosure because lawmakers were ambivalent about the act's powers and didn't want to eliminate opportunities for checks and balances.

Steve Lilienthal, director of the Center for Privacy and Technology Policy at the conservative Free Congress Foundation, said the gag rule is "a license for abuse."

"You have the right to talk to an attorney, but the attorney cannot talk to anyone else," he said. "You're prevented from going to the Department of Justice to communicate, or to the relevant congressional community to tell them when an abuse has taken place. It's almost un-American."

In addition to penalties for disclosure, HR 3179 expands surveillance of noncitizens by amending the Foreign Intelligence Surveillance Act of 1978, or FISA. Currently FISA investigations involve individuals or groups acting on behalf of a foreign government or terrorist organization. But HR 3179 would let the government conduct secret domestic surveillance against noncitizens believed to be engaged in international terrorism, but who have no known affiliation with a foreign government or terrorist group.

Pitts, the attorney with the Bill of Rights Defense Committee, said the amendment could be used to justify surveillance of noncitizens for criminal activity, for work with organizations like Amnesty International or for donating money to an environmental organization that stages protests.

"Because there is no accepted definition of international terrorism, and because they're eliminating the need for someone to be acting on behalf of a foreign government, you're relying on subjective and perhaps arbitrary or politically motivated definitions" to determine who could be secretly investigated, he said.

Barr, a member of the American Conservative Union who has been practicing law since leaving Congress last year, testified against the bill during the May hearing and said that Congress should not be passing new laws to strengthen the Patriot Act while there are concerns about how the legislation has been used to date. The FBI has admitted using the Patriot Act for nonterrorism investigations, such as cases involving corruption in a Las Vegas strip club , drug trafficking and other criminal activity.

Barr said the surveillance powers of the Patriot Act play "fast and loose" with the Constitution and that the secrecy penalties in HR 3179 would make its assault on the Fourth Amendment even worse.

"If the government is able to conduct its powers in secret, then we never know the extent to which its power is being used or being abused," he said. "If the government wants to conduct more of its business in secret and without probable cause, then (we should) just amend or repeal the Fourth Amendment, not allow the government to eat away at it in small steps and pretend it's still there."

Barr said the law should allow recipients of national security letters the right to challenge them, just as they can challenge grand jury subpoenas.

The American Civil Liberties Union recently discovered just how daunting the secrecy provisions can be when it was forced to file a lawsuit in secret that challenged the constitutionality of national security letters under the First Amendment. The organization was able to reveal the existence of the lawsuit only after negotiating with the government about what it could say about the suit.

The lawsuit was filed after the ACLU filed a Freedom of Information Act request for information about how often and in what cases authorities have used national security letters to date, and the organization received six pages of blacked-out documents.

Pitts said that although HR 3179 is not yet on the radar screen of most congress members, activists are working to thwart what he calls a "stealth measure."

"The last time (a Patriot Act II provision) slipped through and got signed was on the day of Saddam Hussein's capture," Pitts said. "There was not a single activist who knew it was coming down the pike. At least this time we know about it in advance."

In total, six bills pending in Congress contain provisions taken from Patriot Act II. In addition to HR 3179, three other House bills (and two Senate companion bills) were introduced late last year:

  • HR 3179 : Anti-Terrorism Intelligence Tools Improvement Act of 2003
  • HR 3037 : Anti-Terrorism Tools Enhancement Act of 2003
  • HR 2934 and S 1604 : Terrorist Penalties Enhancement Act of 2003
  • HR 3040 and S 1606 : Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003
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