The So-Called Patriot II Provision

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Sun, 28 Dec 2003 18:52:46 -0500
From: "sbaker () steptoe com" <sbaker () steptoe com>
Subject: The So-Called Patriot II Provision
To: "'dave () farber net'" <dave () farber net>
Cc: "Albertazzie, Sally" <SAlbertazzie () steptoe com>

Dave,

The Congressional enactment on national security letters -- adopted as part
of the Intelligence Authorization act and recently signed by the President
-- has been overhyped by a few people who are evidently determined to feel
oppressed and abused by ordinary democratic procedure.  The law was not a
secret.  It was unsurprisingly put into the annual intelligence bill because
it relates to, uh, intelligence gathering.  It authorizes the FBI to serve
administrative subpoenas in counterintelligence investigations on a larger
range of financial institutions than was previously the case.

This is not a small change in the law, but it isn't exactly Patriot II,
which had dozens of provisions.  Nor was it a secret.  I certainly knew
about it and was even able to suggest changes.  The provision on national
security letters was also referred to other committees for comment (and,
probably, a veto if there had been objections).  Some committee members
asked for clarifications in the legislative history that were intended to
limit the scope of the amendment to financial rather than other records.
And, if I remember right, something like 170 members of Congress voted
against the entire bill mainly because they had been told that it had
"Patriot II" buried inside it.

It's hard to call that surreptitious or a breakdown of democracy.  It sounds
to me as though the people engaged in overheated rhetoric on this issue are
really unhappy that the press did not join in their newfound spin on the
law.  I'm a little surprised at that myself, but I don't think it's a
conspiracy.

Stewart Baker

-----Original Message-----
From: Dave Farber [mailto:dave () farber net]
Sent: Sunday, December 28, 2003 3:20 PM
To: ip () v2 listbox com
Subject: [IP] ********************READ AND RE_READ Patriot II Passed in
Stealth During Saddam Capture



Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Sun, 28 Dec 2003 12:04:38 -0800
From: Severo Ornstein <severo () poonhill com>

I try not to forward too many depressing articles. But this rates up there
with the biggest outrages. Not only is the deed itself an abomination, but
the way it was passed, signed, and ignored by the media is equally obscene.
Bush signed this the day of Saddam's capture while no one paid attention.
And
the new
provisions were insidiously tucked away in a bill passed by voice vote with
no debate on Thanksgiving. And no one cares ... this is America ... this
can't be happening .... so it's not happening ... but it is.
----------------------------------------------------------------------------
----------

WITH A WHISPER, NOT A BANG
By David Martin     12/24/2003

Bush signs parts of Patriot Act II into law - stealthily

On December 13, when U.S. forces captured Saddam Hussein, President George
W. Bush not only celebrated with his national security team, but also pulled
out his pen and signed into law a bill that grants the FBI sweeping new
powers. A White House spokesperson explained the curious timing of the
signing - on a Saturday - as "the President signs bills seven days a week."
But the last time Bush signed a bill into law on a Saturday happened more
than a year ago - on a spending bill that the President needed to sign, to
prevent shuttng down the federal government the following Monday.

By signing the bill on the day of Hussein's capture, Bush effectively
consigned a dramatic expansion of the USA Patriot Act to a mere footnote.
Consequently, while most Americans watched as Hussein was probed for head
lice, few were
aware that the FBI had just obtained the power to probe their financial
records, even if the feds don't suspect their involvement in crime or
terrorism.

The Bush Administration and its Congressional allies tucked away these new
executive powers in the Intelligence Authorization Act for Fiscal Year 2004,
a legislative behemoth that funds all the intelligence activities of the
federal government. The Act included a simple, yet insidious, redefinition
of "financial institution," which previously referred to banks, but now
includes stockbrokers, car dealerships, casinos, credit card companies,
insurance
agencies,
jewelers, airlines, the U.S. Post Office, and any other business "whose cash
transactions have a high degree of usefulness in criminal, tax, or
regulatory matters."

Congress passed the legislation around Thanksgiving. Except for U.S.
Representative Charlie Gonzalez, all San Antonio's House members voted for
the act.
The Senate passed it with a voice vote to avoid individual accountability.
While
broadening the definition of "financial institution," the Bush
administration is ramping up provisions within the 2001 USA Patriot Act,
which granted the FBI the authority to obtain client records from banks by
merely requesting the records in a "National Security Letter." To get the
records, the FBI doesn't have to appear before a judge, nor demonstrate
"probable cause" - reason to believe that the targeted client is involved in
criminal or terrorist activity. Moreover, the National Security Letters are
attached with a gag order, preventing any financial institution from
informing its clients that their
records
have been surrendered to the FBI. If a financial institution breaches the
gag order, it faces criminal penalties. And finally, the FBI will no longer
be required to report to Congress how often they have used the National
Security Letters.

Supporters of expanding the Patriot Act claim that the new law is necessary
to prevent future terrorist attacks on the U.S. The FBI needs these new
powers to be "expeditious and efficient" in its response to these new
threats. Robert Summers, professor of international law and director of the
new Center for Terrorism Law at St. Mary's University, explains, "We don't
go to war with the terrorists as we went to war with the Germans or the
North Vietnamese. If we apply old methods of following the money, we will
not be successful. We need to meet them on an even playing field to avoid
another disaster."

  Opponents of the PATRIOT Act and its expansion claim that safeguards like
judicial oversight and the Fourth Amendment, which prohibits unreasonable
search
and seizure, are essential to prevent abuses of power. "There's a reason
these protections were put into place," says Chip Berlet, senior analyst at
Political Research Associates, and a historian of U.S. political
repression. "It has
been shown that if you give [these agencies] this power they will abuse it.
For any investigative agency, once you tell them that they must make sure
that they protect the country from subversives, it inevitably gets
translated into a program to silence dissent."

Opponents claim the FBI already has all the tools to stop crime and
terrorism. Moreover, explains Patrick Filyk, an attorney and vice president
of the
local chapter of the ACLU, "The only thing the act accomplishes is the
removal of
judicial oversight and the transfer of more power to law enforcements
agents."

This broadening of the Patriot Act represents a political victory for the
Bush Administration's stealth legislative strategy to increase executive
power. Last February, shortly before Bush launched the war on Iraq, the
Center for Public Integrity obtained a draft of a comprehensive expansion of
the Patriot Act, nicknamed Patriot Act II, written by Attorney General John
Ashcroft's
staff.
Again, the timing was suspicious; it appeared that the Bush Administration
was waiting for the start of the Iraq war to introduce Patriot Act II, and
then exploit the crisis to ram it through Congress with little public
debate.

The leak and ensuing public backlash frustrated the Bush administration's
strategy, so Ashcroft and Co. disassembled Patriot Act II, then reassembled
its parts into other legislation. By attaching the redefinition of
"financial institution" to an Intelligence Authorization Act, the Bush
Administration
and its
Congressional allies avoided public hearings and floor debates for the
expansion of the Patriot Act.

Even proponents of this expansion have expressed concern about these
legislative tactics. "It's a problem that some of these riders that are
added on may
not receive the scrutiny that we would like to see," says St. Mary's
Professor Robert Summers.

The Bush Administration has yet to answer pivotal questions about its latest
constitutional coup: If these new executive powers are necessary to protect
United States citizens, then why would the legislation not withstand the
test of
public debate? If the new act's provisions are in the public interest, why
use stealth in ramming them through the legislative process?

http://www.sacurrent.com/site/news.cfm?newsid=10705756&BRD=2318&PAG=461&dept
_id=482778&rfi=6


--
Severo M. Ornstein
Poon Hill
2200 Bear Gulch Road
Woodside, CA 94062
Tel: 650-851-4258
Fax: 650-851-9549

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