Obama Embraces Patriot Act; As Senator, He Was Skeptical

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The Obama administration wants Congress to reauthorize three controversial provisions of the 2001 USA Patriot Act scheduled to expire later this year, but said in a letter to two senators that it is open to adding (unspecified) civil liberties safeguards.  The Senate Judiciary Committee will hold a hearing on the sunsetting provisions next week and wants to consider broader reforms. Five months ago, it asked the administration for its views; just yesterday, the administration responded.  Some of the changes to the law Barack Obama sought as a senator -- including modifications to the administrative subpoena power known as National Security Letters -- are not part of the corpus of his views today.


In a letter to Sens. Russ Feingold and Dick Durbin (Durbin-Feingold 091409.pdf), assistant attorney general Ronald Welch, the chief DOJ liaison to Congress, said that the administration supports the so-called "roving wiretap" provision, which allows the government to continue surveilling terrorism suspect under a single wiretap warrant even if the suspect changes the medium of communication.  According to Weich, the administration will not authorize such a warrant unless it has "specific" evidence that the suspect is actively working to avoid detection by authorities. About 22 such wiretaps are authorized every year. "We believe the basic justification offered to Congress in 2001 remains valid today," Weich writes. 
The administration also wants Congress to reauthorize the provision extending the ability of the FBI to request detailed business records under a FISA warrant. According to the government, the Foreign Intelligence Surveillance Act court has issued about 220 orders to produce such records in 2004, and the Justice Department asserts that they have provided investigators with critical information -- although they say the specifics are classified. Weich writes: "It is noteworthy that no recipient of a FISA business records order has ever challenged the validity of the order, despite the availability, since 2006, of a clear statutory mechanism to do so."

Finally, the administration wants Congress to keep the so-called "lone wolf" provision in place, which allows them to conduct surveillance of a terrorism suspect even if they don't know what country that person is acting on behalf of -- if any.  According to Weich , "the Government must know a great deal about the target, including the target's purpose and plans for terrorist activity (in order to satisfy the defmition of "international terrorism"), but still be unable to connect the individual to any group that meets the FISA definition of a foreign power."

Weich notes that Feingold and Durbin "may propose modifications to provide additional protection for the privacy of law abiding Americans."  He quotes President Obama's speech to the National Archives to demonstrate, he says, the "willingness" to consider such ideas, provided that they do not undermine the effectiveness of these important authorities."

As a senator, Obama co-signed a letter (sdaasd.pdf) supporting broad reforms of the Patriot Act, including a requirement that, in order to obtain business records, "the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy, as the three-part standard in the Senate bill would mandate."   The letter also supports the sunsetting of the controversial National Security Letters provision, which allows the FBI to request "sensitive personal information simply by certifying that the information is sought for a terrorism or espionage investigation."  The letter Obama co-signed includes this statement: "This would allow government fishing expeditions targeting innocent Americans. As business groups have argued, the government should be required to certify that the person whose records are sought has some connection to a suspected terrorist or spy." 

When Congress reauthorized the bill in 2006, it included several modifications that were requested by these senators, including a some limits on the NSL authority, an exemption for libraries, and a less restrictive gag order on those entities receiving letters demanding information. Obama was one of 89 senators to support the bill.

Senators, including the chairman of the Judiciary Committee, Carl Levin, point to news that the FBI repeatedly misused the National Security Letter power as evidence that the Act needs broader reform. And there remain questions about whether the Justice Department continues to support Bush-era signing statements that seemed to go around Congress's intent in narrowing the categories of people who could be targeted by the new law.  Another big concern: the Investigative Data Warehouse maintained by the FBI, which collects and stores records on thousands of Americans; what the data includes is unclear; how many Americans are part of the database is unclear; the safeguards in place to prevent abuse is also unclear.  
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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