Smoky Mountains Sunrise

Tuesday, February 15, 2011

Gowdy Supports Reauthorization of Patriot Act

 Updated Monday evening, 2/15/11

We were very pleased to learn this evening that Representative Gowdy shares our concerns about many aspects of The Patriot Act.  We failed to make clear in our earlier post that because the Patriot Act is due to expire in the next several weeks, the Congress temporarily reauthorized only three of the more benign provisions of the Act, one of which pertains only to foreign nationals.

Congressman Gowdy has assured us that extensive oversight hearings will be held as early as March and that he and many Members of Congress will be eager to hear the views of their constituents to ensure that it in no way violates the Constitution of the United States.

The Congressman has kindly provided the following summary of the three provisions that have been temporarily reauthorized.  We look forward to following this issue closely in the months ahead.
The three provisions set for review, oversight and potential reauthorization are (1) the Lone Wolf Provision, (2) the Roving Wiretap Provision and (3) the Business Records Provision.  

The constitutionality of the Lone Wolf and Roving Wiretap Provisions has never been challenged.  The Business Records Provision was more controversial, and has been amended to address those concerns.  The USA PATRIOT Act actually erects additional safeguards in national security cases that do not exist in other categories of criminal conduct.  These additional layers of constitutional protection require more oversight and scrutiny than the garden-variety drug cases I investigated as a federal prosecutor.

1)  Section 6001 of the Intelligence Reform and Terrorist Prevention Act (Lone Wolf Provision) – This provision allows law enforcement to conduct surveillance on non-U.S. citizens who act as  “lone wolves” without ties to an organized terror group or foreign power.  The United States faces varying threats to our safety, and national security agents must have the tools to prevent attacks planned by non-U.S. citizens acting outside the structure of an organized enemy. 

2)  Section 206 of the Patriot Act (Roving Wiretap Provision) – The roving wiretap tool has been available to law enforcement since 1986.  It allows for law enforcement agents, after proving probable cause on an initial warrant, to extend that warrant to other communications devices used by a suspect.  Instead of having to procure individual warrants on each device, which in the age of disposable phones can number in the thousands, this provision prevents suspects from evading surveillance by using multiple devices.  The provision also requires continuous monitoring by the FISA court and detailed reporting by law enforcement officers.

3)  Section 215 of the Patriot Act (Business Records Provision) – Business records are routinely sought and obtained in domestic investigations through the use of subpoenas, a practice I participated in countless times during my years in law enforcement.  This provision goes a step further, requiring FISA court approval to obtain third-party information, NOT personal documents.

H.R. 514 only covers these three provisions, and is merely a temporary reauthorization through the end of the year.  By voting for temporary reauthorization, we are ensuring our law enforcement agents have the necessary tools to keep our country safe from attack, while at the same time providing for a thorough examination of the law.  Instead of rushing legislation through behind closed doors without proper oversight, this measure sets the stage for meaningful hearings to address any civil liberties concerns.

I have personally approached Speaker John Boehner, Majority Leader Eric Cantor, Representative Jim Sensenbrenner (the original author of the USA PATRIOT Act), and Representative Lamar Smith (Chairman of the Judiciary Committee) urging them to conduct oversight hearings as soon as possible on the reauthorization of the three PATRIOT Act provisions set to expire at the end of 2011.  I have been assured these hearings will occur, and expect to be an active participant in the process by asking tough questions and expecting candid responses.

We acknowledge the need to provide oversight in all aspects of government, including law enforcement and national security.  I look forward to full, frank and fair debate on all aspects of the reauthorization in an open forum, with the public as an active partner in the oversight process.
. . . .

Representative Trey Gowdy (R-SC), who was nominated and elected on a wave of revulsion to the liberal voting record of his Republican predecessor, joined Democrats in reauthorizing the misnamed Patriot Act.

Prior to last weeks vote extending the Patriot Act, we contacted Gowdy's office by phone and E-mail to express our strong disapproval of this unconstitutional intrusion into the rights and freedoms of American citizens.  When reauthorization of the Act failed under previous rules, the House changed the rules to allow reauthorization with a simple majority vote.  We received the following response from Congressman Gowdy:

February 15, 2011

Dear Mr. Cassidy:

Thank you for contacting me about the temporary renewal of three provisions from the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act ("IRTP Act"). I value your thoughts and appreciate the opportunity to respond.

The PATRIOT Act erects additional safeguards in national security cases that do not exist in other categories of criminal conduct. These additional layers of constitutional protection require more oversight and scrutiny than the garden-variety drug cases I investigated as a federal prosecutor. For these reasons, I voted to support H.R. 514.

Section 215 of the PATRIOT Act, the Business Records Provision, allows the FBI to request the approval of the Foreign Intelligence Surveillance Act Court ("FISA Court") to access third party items relevant to international terrorism cases. Gathering business records is routine in investigations, and this provision requires that these items only be obtained with the approval of a FISA Court judge who is appointed by the Chief Justice of the United States and well versed in constitutional and criminal law.

Section 206 of the PATRIOT Act, the Roving Wiretap Provision, authorizes the use of multipoint wiretaps, a tool employed by law enforcement since 1986. This provision allows the government, with the approval of a FISA Court judge, to use a single wiretap to cover any communications device used by a terrorism suspect. With out this authority, investigators would need to receive approval from a FISA judge to conduct surveillance each time a terrorism suspect uses a different cell phone or computer, allowing terrorists to evade detection by using multiple devices.

Section 6001 of the IRTP Act, the Lone Wolf Provision, allows the government to conduct surveillance on individuals without ties to an organized terror group or foreign power. This provision can only be used to conduct surveillance on people who are not U.S. citizens, and ensures that terrorists who work on their own will not escape surveillance and detection.

H.R. 514 extended these provisions temporarily through December 2011, ensuring law enforcement has the tools needed to keep our country safe, while allowing for a thorough examination of the PATRIOT Act. Congress will be considering these issues in the coming months as it looks at a more permanent reauthorization, and I will keep your thoughts in mind as Congress looks to strike the appropriate balance between protecting American citizens while ensuring civil liberties are respected. Please do not hesitate to contact my office if you have specific questions or concerns about these provisions that you would like us to examine in this process.

Thank you again for contacting me, and please do not hesitate to do so in the future. It is an honor to serve you and the 4th Congressional District.


Trey Gowdy
Member of Congress

Unfortunately, we find a "Dear Colleague" letter sent by the new, conservative Senator from Kentucky, Rand Paul, a lot more convincing than Congressman Gowdy's defense of big government's rights  to usurp protections guaranteed by the Constitution of the United states.

Senator Paul's letter follows:

Dear Colleague:
James Otis argued against general warrants and writs of assistance that were issued by British soldiers without judicial review and that did not name the subject or items to be searched.

He condemned these general warrants as “the worst instrument[s] of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever w[ere] found in an English law book.” Otis objected to these writs of assistance because they “placed the liberty of every man in the hands of every petty officer.” The Fourth Amendment was intended to guarantee that only judges—not soldiers or policemen—would issue warrants. Otis’ battle against warrantless searches led to our Fourth Amendment guarantee against unreasonable government intrusion.

My main objection to the PATRIOT Act is that searches that should require a judge’s warrant are performed with a letter from an FBI agent—a National Security Letter (“NSL”).

I object to these warrantless searches being performed on United States citizens. I object to the 200,000 NSL searches that have been performed without a judge’s warrant.

I object to over 2 million searches of bank records, called Suspicious Activity Reports, performed on U.S. citizens without a judge’s warrant.

As February 28th approaches, with three provisions of the USA PATRIOT Act set to expire, it is time to re-consider this question: Do the many provisions of this bill, which were enacted in such haste after 9/11, have an actual basis in our Constitution, and are they even necessary to achieve valid law-enforcement goals?

The USA PATRIOT Act, passed in the wake of the worst act of terrorism in U.S. history, is no doubt well-intentioned. However, rather than examine what went wrong, and fix the problems, Congress instead hastily passed a long-standing wish list of power grabs like warrantless searches and roving wiretaps. The government greatly expanded its own power, ignoring obvious answers in favor of the permanent expansion of a police state.

It is not acceptable to willfully ignore the most basic provisions of our Constitution—in this case—the Fourth and First Amendments—in the name of “security.”

For example, one of the three provisions set to expire on February 28th—the “library provision,” section 215 of the PATRIOT Act—allows the government to obtain records from a person or entity by making only the minimal showing of “relevance” to an international terrorism or espionage investigation. This provision also imposes a year-long nondisclosure, or “gag” order. “Relevance” is a far cry from the Fourth Amendment’s requirement of probable cause. Likewise, the “roving wiretap” provision, section 206 of the PATRIOT Act, which is also scheduled to expire on the 28th, does not comply with the Fourth Amendment. This provision makes possible “John Doe roving wiretaps,” which do not require the government to name the target of the wiretap, nor to identify the specific place or facility to be monitored. This bears an uncanny resemblance to the Writs of Assistance fought against by Otis and the American colonists.

Other provisions of the PATRIOT Act previously made permanent and not scheduled to expire present even greater concerns. These include the use and abuse by the FBI of so-called National Security Letters. These secret demand letters, which allow the government to obtain financial records and other sensitive information held by Internet Service Providers, banks, credit companies, and telephone carriers—all without appropriate judicial oversight—also impose a gag order on recipients.

NSL abuse has been and likely continues to be rampant. The widely-circulated 2007 report issued by the Inspector General from the Department of Justice documents “widespread and serious misuse of the FBI’s national security letter authorities. In many instances, the FBI’s misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies.” Another audit released in 2008 revealed similar abuses, including the fact that the FBI had issued inappropriate “blanket NSLs” that did not comply with FBI policy, and which allowed the FBI to obtain data on 3,860 telephone numbers by issuing only eleven “blanket NSLs.” The 2008 audit also confirmed that the FBI increasingly used NSLs to seek information on U.S. citizens. From 2003 to 2006, almost 200,000 NSL requests were issued. In 2006 alone, almost 60% of the 49,425 requests were issued specifically for investigations of U.S. citizens or legal aliens.

In addition, First Amendment advocates should be concerned about an especially troubling aspect of the 2008 audit, which documented a situation in which the FBI applied to the United States Foreign Intelligence Surveillance Court (FISC) to obtain a section 215 order. The Court denied the order on First Amendment grounds. Not to be deterred, the FBI simply used an NSL to obtain the same information.

A recent report released by the Electronic Frontier Foundation (“EFF”) entitled, “Patterns of Misconduct: FBI Intelligence Violations from 2001-2008,” documents further NSL abuse. EFF estimates that, based on the proportion of violations reported to the Intelligence Oversight Board and the FBI’s own statements regarding NSL violations, the actual number of violations that may have occurred since 2001 could approach 40,000 violations of law, Executive Order, and other regulations.

Yet another troublesome (and now permanent) provision of the PATRIOT Act is the expansion of Suspicious Activity Reports. Sections 356 and 359 expanded the types of financial institutions required to file reports under the Bank Secrecy Act. The personal and account information required by the reports is turned over to the Treasury Department and the FBI. In 2000, there were only 163,184 reports filed. By 2007, this had increased to 1,250,439. Again, as with NSLs, there is a complete lack of judicial oversight for SARs.

Finally, I wish to remind my colleagues that one of the many ironies of the rush to advance the PATRIOT Act following 9/11 is the well-documented fact that FBI incompetence caused the failure to search the computer of the alleged 20th hijacker, Zacarias Moussaoui. As FBI agent Coleen Rowley stated, “the FBI headquarters supervisory special agent handling the Moussaoui case ‘seemed to have been consistently almost deliberately thwarting the Minneapolis FBI agents’ efforts” to meet the FISA standard for a search warrant, and therefore no request was ever made for a warrant. Why, then, was the FBI rewarded with such expansive new powers in the aftermath of this institutional failure?

In the words of former Senator Russ Feingold, the only “no” vote against the original version of the PATRIOT Act,
“[T]here is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”
I call upon each of my Senate colleagues to seriously consider whether the time has come to re-evaluate many—if not all—provisions of the PATRIOT Act. Our oath to uphold the Constitution demands it.


Rand Paul, M.D.
United States Senator
Mr. Gowdy should spend some time reflecting on his predecessor - a man who thought he knew better than his constituents.  We can understand a former prosecutor wanting all the "tools" to pursue evil doers, but Mr. Gowdy has a more important mission now -- to support and defend the Constitution of the United States against all enemies, foreign and domestic."

Given our current, national leadership, we believe it is more important than it has ever been to be zealous in the defense of liberty.

1 comment:

kkollwitz said...

After several weeks in office, Gowdy still remembers who elected him.

So far so good.