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funksands On September - 12 - 2011

The world looks very much different now than it did 10 years ago.  The lives of every American changed forever that day and in the days that followed.  One transformation to come out of 9-11 was the rise of the new security state of the U.S.A.  The Patriot Act was the template for this change to our nation, our laws, and our civil liberties.

On October 25, 2001 the Patriot Act sailed through the US Senate with a vote of 98-1.  The lone dissenting vote was from Senator Russ Feingold – D Wisconsin

 In an address given October 12, 2001, to the Associated Press Managing Editors Conference at the Milwaukee Art Museum, Milwaukee, Wisconsin, Sen. Feingold (D-Wis) explained why he, alone among United States Senators, voted against the Administration-sponsored “U.S.A. Patriot” Act. The text below followed his introductory remarks.

“[T]his conference comes at a tragic time for our country. Let us first pause to remember, through one small story, how September 11th has irrevocably changed so many lives. In a letter to The Washington Post last Saturday, a man wrote that as he went jogging near the Pentagon, he came across the makeshift memorial built for those who lost their lives there. He slowed to a walk as he took in the sight before him – the red, white and blue flowers covering the structure, and then, off to the side, a second, smaller memorial with a card.

The card read, “ Happy Birthday Mommy. Although you died and are no longer with me, I feel as if I still have you in my life. I think about you every day.”

After reading the card, the man felt as if he were “drowning in the names of dead mothers, fathers, sons and daughters.” The author of this letter shared a moment in his own life that so many of us have had – the moment where televised pictures of the destruction are made painfully real to us. We read a card, or see the anguished face of a grieving loved one, and we suddenly feel the enormity of what has happened to so many American families, and to all of us as a people.

We all also had our own initial reactions, and my first and most powerful emotion was a solemn resolve to stop these terrorists. And that remains my principal reaction to these events. But I also quickly realized that two cautions were necessary and I raised them on the Senate floor within one day of the attacks.

The first caution was that we must continue to respect our Constitution and protect our civil liberties in the wake of the attacks. As the chairman of the Constitution Subcommittee of the Judiciary Committee, I recognize this is a different world with different technologies, different issues, and different threats. Yet we must examine every item that is proposed in response to these events to be sure we are not rewarding these terrorists and weakening ourselves by giving up the cherished freedoms that they seek to destroy.

The second caution I issued was a warning against the mistreatment of Arab Americans, Muslim Americans, South Asians, or others in this country. Already, one day after the attacks, we were hearing news reports that misguided anger against people of these backgrounds had led to harassment, violence, and even death.

I suppose I was reacting instinctively to the unfolding events in the spirit of the Irish statesman John Philpot Curran, who said: “The condition upon which God hath given liberty to man is eternal vigilance.”

During those first few hours after the attacks, I kept remembering a sentence from a case I had studied in law school. Not surprisingly, I didn’t remember which case it was, who wrote the opinion, or what it was about, but I did remember these words: “While the Constitution protects against invasions of individual rights, it is not a suicide pact.” I took these words as a challenge to my concerns about civil liberties at such a momentous time in our history; that we must be careful to not take civil liberties so literally that we allow ourselves to be destroyed.

But upon reviewing the case itself, Kennedy v. Mendoza-Martinez, I found that Justice Arthur Goldberg had made this statement but then ruled in favor of the civil liberties position in the case, which was about draft evasion. He elaborated:

“It is fundamental that the great powers of Congress to conduct war and to regulate the Nation’s foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances…. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.”

I have approached the events of the past month and my role in proposing and reviewing legislation relating to it in this spirit.

And so we must redouble our vigilance. We must redouble our vigilance to ensure our security and to prevent further acts of terror. But we must also redouble our vigilance to preserve our values and the basic rights that make us who we are.

The Founders who wrote our Constitution and Bill of Rights exercised that vigilance even though they had recently fought and won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote a Constitution of limited powers and an explicit Bill of Rights to protect liberty in times of war, as well as in times of peace.

There have been periods in our nation’s history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War. We must not allow these pieces of our past to become prologue.

As this morning’s panel has discussed, even in our great land, wartime has sometimes brought us the greatest tests of our Bill of Rights.

For example, during the Civil War, the government arrested some 13,000 civilians, implementing a system akin to martial law. President Lincoln issued a proclamation ordering the arrest and military trial of any persons “discouraging volunteer enlistments, [or] resisting militia drafts.” Wisconsin provided one of the first challenges of this order. Draft protests rose up in Milwaukee and Sheboygan. And an anti-draft riot broke out among Germans and Luxembourgers in Port Washington. When the government arrested one of the leaders of the riot, his attorney sought a writ of habeas corpus. His military captors said that the President had abolished the writ. The Wisconsin Supreme Court was among the first to rule that the President had exceeded his authority.

In 1917, the Postmaster General revoked the mailing privileges of the newspaper the Milwaukee Leader because he felt that some of its articles impeded the war effort and the draft. Articles called the President an aristocrat and called the draft oppressive. Over dissents by Justices Brandeis and Holmes, the Supreme Court upheld the action.

During World War II, President Roosevelt signed orders to incarcerate more than 110,000 people of Japanese origin, as well as some roughly 11,000 of German origin and 3,000 of Italian origin.

Earlier this year, I introduced legislation to set up a commission to review the wartime treatment of Germans, Italians, and other Europeans during that period. That bill came out of heartfelt meetings in which constituents told me their stories. They were German-Americans, who came to me with some trepidation. They had waited fifty years to raise the issue with a member of Congress. They did not want compensation. They came to me with some uneasiness. But they had seen the government’s commission on the wartime internment of people of Japanese origin, and they wanted their story to be told, and an official acknowledgment as well.

Now some may say, indeed we may hope, that we have come a long way since the those days of infringements on civil liberties. But there is ample reason for concern. I have been troubled in the past month by the potential loss of commitment to traditional civil liberties.

As it seeks to combat terrorism, the Justice Department is making extraordinary use of its power to arrest and detain individuals, jailing hundreds of people on immigration violations and arresting more than a dozen “material witnesses” not charged with any crime. Although the government has used these authorities before, it has not done so on such a broad scale. Judging from government announcements, the government has not brought any criminal charges related to the attacks with regard to the overwhelming majority of these detainees.

For example, the FBI arrested as a material witness the San Antonio radiologist Albader Al-Hazmi, who has a name like two of the hijackers, and who tried to book a flight to San Diego for a medical conference. According to his lawyer, the government held Al-Hazmi incommunicado after his arrest, and it took six days for lawyers to get access to him. After the FBI released him, his lawyer said, “This is a good lesson about how frail our processes are. It’s how we treat people in difficult times like these that is the true test of the democracy and civil liberties that we brag so much about throughout the world.”

Now, it so happens that since early 1999, I have been working on another bill that is poignantly relevant to recent events: legislation to prohibit racial profiling, especially the practice of targeting pedestrians or drivers for stops and searches based on the color of their skin. Before September 11th, people spoke of the issue mostly in the context of African-Americans and Latino-Americans who had been profiled. But after September 11, the issue has taken on a new context and a new urgency.

Even as America addresses the demanding security challenges before us, we must strive mightily also to guard our values and basic rights. We must guard against racism and ethnic discrimination against people of Arab and South Asian origin and those who are Muslim.

We who don’t have Arabic names or don’t wear turbans or headscarves may not feel the weight of these times as much as Americans from the Middle East and South Asia do. But as the great jurist Learned Hand said in a speech in New York’s Central Park during World War II: “[T]he spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias . . . .”

Was it not at least partially bias, however, when passengers on a Northwest Airlines flight in Minneapolis three weeks ago insisted that Northwest remove from the plane three Arab men who had cleared security?

Of course, given the enormous anxiety and fears generated by the events of September 11th, it would not have been difficult to anticipate some of these reactions, both by our government and some of our people. And, of course, there 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. 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.

Preserving our freedom is the reason that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people.

That is why I found the antiterrorism bill originally proposed by Attorney General Ashcroft and President Bush to be troubling.

The proposed bill contained vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI’s wish list that Congress has rejected in the past. You may remember that the Attorney General announced his intention to introduce a bill shortly after the September 11 attacks. He provided the text of the bill the following Wednesday, and urged Congress to enact it by the end of the week. That was plainly impossible, but the pressure to move on this bill quickly, without deliberation and debate, has been relentless ever since.

It is one thing to shortcut the legislative process in order to get federal financial aid to the cities hit by terrorism. We did that, and no one complained that we moved too quickly. It is quite another to press for the enactment of sweeping new powers for law enforcement that directly affect the civil liberties of the American people without due deliberation by the peoples’ elected representatives.

Fortunately, cooler heads prevailed at least to some extent, and while this bill has been on a fast track, there has been time to make some changes and reach agreement on a bill that is less objectionable than the bill that the Administration originally proposed.

As I will discuss in a moment, I concluded that the Senate bill still does not strike the right balance between empowering law enforcement and protecting civil liberties. But that does not mean that I oppose everything in the bill. Indeed many of its provisions are entirely reasonable, and I hope they will help law enforcement more effectively counter the threat of terrorism.

For example, it is entirely appropriate that with a warrant the FBI be able to seize voice mail messages as well as tap a phone. It is also reasonable, even necessary, to update the federal criminal offense relating to possession and use of biological weapons. It made sense to make sure that phone conversations carried over cables would not have more protection from surveillance than conversations carried over phone lines. And it made sense to stiffen penalties and lengthen or eliminate statutes of limitation for certain terrorist crimes.

There are other non-controversial provisions in the bill which I support – those to assist the victims of crime, to streamline the application process for public safety officers benefits and increase those benefits, to provide more funds to strengthen immigration controls at our Northern borders, expedite the hiring of translators at the FBI, and many others.

In the end, however, my focus on this bill, as Chair of the Constitution Subcommittee of the Judiciary Committee in the Senate, was on those provisions that implicate our constitutional freedoms. And it was in reviewing those provisions that I came to feel that the Administration’s demand for haste was inappropriate; indeed, it was dangerous. Our process in the Senate, as truncated as it was, did lead to the elimination or significant rewriting of a number of audacious proposals that I and many other members found objectionable.

For example, the original Administration proposal that was dropped contained a provision that would have allowed the use in U.S. criminal proceedings against U.S. citizens of information obtained by foreign law enforcement agencies in wiretaps that would be illegal in this country. In other words, evidence obtained in an unconstitutional search overseas was to be allowed in a U.S. court.

Another provision would have broadened the criminal forfeiture laws to permit – prior to conviction – the freezing of assets entirely unrelated to an alleged crime. The Justice Department has wanted this authority for years, and Congress has never been willing to give it. For one thing, it touches on the right to counsel, since assets that are frozen cannot be used to pay a lawyer. The courts have almost uniformly rejected efforts to restrain assets before conviction unless they are assets gained in the alleged criminal enterprise. This proposal, in my view, was simply an effort on the part of the Department to take advantage of the emergency situation and get something that they’ve wanted to get for a long time.

The foreign wiretap and criminal forfeiture provisions were dropped from the bill that we considered in the Senate. Other provisions were rewritten based on objections that I and others raised about them. For example, the original bill contained sweeping permission for the Attorney General to get copies of educational records without a court order. The final bill in the Senate requires a court order and the certification by the Attorney General that he has reason to believe that the records contain information that is relevant to an investigation of terrorism.

Another provision increased penalties for conspiracy to the level of the penalties for the underlying crime. I was concerned that this might bring the federal death penalty into play for conspiracy. The provision was modified to make life in prison the maximum penalty for conspiracy.

And the definition of “federal terrorism offense,” originally a laundry list of federal crimes that in some instances might, but in most instances would not, relate to terrorism was significantly narrowed.

So the bill the Senate passed last night was certainly improved from the bill that the Administration sent to us on September 19, and wanted us to pass on September 21. But again, in my judgement, it did not strike the right balance between empowering law enforcement and protecting constitutional freedoms. Let me take a moment to discuss some of the shortcomings of the bill that we passed in the Senate very late Thursday night, by a vote of 96-1. And I guess you know by now who the “one” was.

First, the bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism. One provision would greatly expand the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search. The longstanding practice under the Fourth Amendment of serving a warrant prior to executing a search could be easily avoided in virtually every case because the government would simply have to show that it has “reasonable cause to believe” that providing notice “may” “seriously jeopardize an investigation.” This is a significant infringement on personal liberty.

Notice is a key element of Fourth Amendment protections. It allows a person to point out mistakes in a warrant and make sure that a search is limited to the terms of a warrant. Just think about the possibility of the police showing up at your door with a warrant to search your house. You look at the warrant and say, “yes, that’s my address, but the name on the warrant isn’t me.” And the police realize a mistake has been made an go away. If you’re not home, and the police have received permission to do a “sneak and peak” search, they can come in your house, look around, and leave, and may never have to tell you.

Another very troubling provision has to do with the effort to combat computer crime. The bill allows law enforcement to monitor a computer with the permission of its owner or operator, without the need to get a warrant or show probable cause. That’s fine in the case of a so called “denial of service attack” or plain old computer hacking. A computer owner should be able to give the police permission to monitor communications coming from what amounts to a trespasser on the computer.

As drafted in the Senate bill, however, the provision might permit an employer to give permission to the police to monitor the emails of an employee who has used her computer at work to shop for Christmas gifts. Or someone who uses a computer at a library or at school and happens to go to a gambling or pornography site in violation of the Internet use policies of the library or the university might also be subjected to government surveillance – without probable cause and without any time limit.

I am also very troubled by the broad expansion of government power under the Foreign Intelligence Surveillance Act, known as FISA. When Congress passed FISA in 1978 it granted to the executive branch the power to conduct surveillance in foreign intelligence investigations without meeting the rigorous probable cause standard under the Fourth Amendment that is required for criminal investigations. There is a lower threshold for obtaining a wiretap order from the FISA court because the FBIis not investigating a crime, it is investigating foreign intelligence activities. The law currently requires that intelligence gathering be the primary purpose of the investigation in order for this lower standard to apply.

The bill that passed the Senate last night changes that requirement. If it becomes law, and there is every reason to believe with a Senate vote of 96-1 that it will, the government will only have to show that intelligence is a “significant purpose” of the investigation. Even if the primary purpose is a criminal investigation, the heightened protections of the Fourth Amendment won’t apply.

It seems obvious that with this lower standard, the FBI will try to use FISA as much as it can. And of course, with terrorism investigations that won’t be difficult because the terrorists are apparently sponsored or at least supported by foreign governments.

But the significance of the breakdown of the distinction between intelligence and criminal investigations becomes apparent when you see the other expansions of government power under FISA in this bill. One provision that troubles me a great deal is a provision that permits the government under FISA to compel the production of records from any business regarding any person if that information is sought in connection with an investigation of terrorism or espionage.

Now we’re not talking here about travel records pertaining to a terrorist suspect, which we all can see can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental and other records of a suspect.

But under the Senate bill, the government can compel the disclosure of anyone – perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by the target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That’s it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

As some of you know, I raised a few of these issues during our debate on the bill on Thursday night. I had to wage war with my own leadership over the previous two days to get that opportunity. The leadership of both parties wanted to take this bill, which was never considered or voted on in the Judiciary Committee, and ram it through the U.S. Senate without a single amendment being offered.

In the end, the high water mark for my three amendments was 13 votes – that was on the amendment to the computer trespass provision. Prior to that vote the majority leader of the Senate stood up and implored the Senate to vote down all of my amendments, not on their merits, but because a deal had been struck on this bill.

This was not, in my view, the finest hour for the United States Senate. The debate on a bill that may have the most far reaching consequences on the civil liberties of the American people in a generation was a non-debate. The merits took a back seat to the deal.

Let me turn to a final area of real concern about this legislation because I think it brings us full circle to the cautions I expressed on the day after the attacks. There are two very troubling provisions dealing with our immigration laws in this bill.

First, the Administration’s original proposal would have granted the Attorney General extraordinary powers to detain immigrants indefinitely, including legal permanent residents. The Attorney General could do so based on mere suspicion that the person is engaged in terrorism. I believe the Administration was really over-reaching here, and I am pleased that Senator Leahy was able to negotiate some protections. The Senate bill now requires the Attorney General to charge the immigrant within seven days with a criminal offense or immigration violation. In the event that the Attorney General does not charge the immigrant, the immigrant must be released.

While this protection is an improvement, the provision remains fundamentally flawed. The Senate bill, even with this seven-day charging requirement, would nevertheless continue to permit the indefinite detention in two situations. First, immigrants who win their deportation cases could continue to be held if the Attorney General continues to have suspicions. Second, this provision creates a deep unfairness to immigrants who are found not to be deportable for terrorism but have an immigration status violation, such as overstaying a visa. If the immigration judge finds that they are eligible for relief from deportation, and therefore can stay in the country because, for example, they have longstanding family ties here, the Attorney General could continue to hold them indefinitely.

The second provision in the bill that deeply troubles me allows the detention and deportation of people engaging in innocent associational activity. But the Senate bill would allow for the detention and deportation of individuals who provide lawful assistance to groups that are not even designated by the Secretary of State as terrorist organizations, but instead have engaged in vaguely defined “terrorist activity” sometime in the past. To avoid deportation, the immigrant is required to prove a negative: that he or she did not know, and should not have known, that the assistance would further terrorist activity.

This language creates a very real risk that truly innocent individuals could be deported for innocent associations with humanitarian or political groups that the government later chooses to regard as terrorist organizations. Groups that might fit this definition could include Operation Rescue, Greenpeace, and even the Northern Alliance fighting the Taliban in northern Afghanistan. This provision amounts to “guilt by association,” which I believe violates the First Amendment.

And speaking of the First Amendment, under this bill, a lawful permanent resident who makes a controversial speech that the government deems to be supportive of terrorism might be barred from returning to his or her family after taking a trip abroad.

Now here’s where my cautions in the aftermath of the terrorist attacks and my concern over the reach of the anti-terrorism bill come together. To the extent that the expansive new immigration powers that the bill grants to the Attorney General are subject to abuse, who do we think is most likely to bear the brunt of that abuse? It won’t be immigrants from Ireland, it won’t be immigrants from El Salvador or Nicaragua, it won’t even be immigrants from Haiti or Africa. It will be immigrants from Arab, Muslim, and South Asian countries. In the wake of these terrible events, our government has been given vast new powers and they may fall most heavily on a minority of our population who already feel particularly acutely the pain of this disaster.

The anti-terrorism bill that we considered in the Senate this week highlights the march of technology, and how that march cuts both for and against personal liberty. Justice Brandeis foresaw some of the future in a 1928 dissent, when he wrote:

“The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . . Can it be that the Constitution affords no protection against such invasions of individual security?”

We must grant law enforcement the tools that it needs to stop this terrible threat. But we must give them only those extraordinary tools that they need and that relate specifically to the task at hand.

In the play, “A Man for All Seasons,” Sir Thomas More questions the bounder Roper whether he would level the forest of English laws to punish the Devil. “What would you do?” More asks, “Cut a great road through the law to get after the Devil?” Roper affirms, “I’d cut down every law in England to do that.” To which More replies:

“And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast . . . and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake. ”

We must maintain our vigilance to preserve our laws and our basic rights.

You and I have a duty to analyze, to test, to weigh new laws that the zealous and often sincere advocates of security would suggest to us. This is what I have tried to do with the so-called anti-terrorism bill.

Protecting the safety of the American people is a solemn duty of the Congress; we must work tirelessly to prevent more tragedies like the devastating attacks of September 11th. We must prevent more children from losing their mothers, more wives from losing their husbands, and more firefighters from losing their brave and heroic colleagues. But the Congress will fulfill its duty only when it protects both the American people and the freedoms at the foundation of American society. So let us preserve our heritage of basic rights. Let us practice that liberty. And let us fight to maintain that freedom that we call America.”

Mr. Feingold, thank you for being a Great American.

 

 

Written by funksands

There are known knowns; there are things we know that we know. There are known unknowns; that is to say there are things that, we now know we don't know. But there are also unknown unknowns – there are things we do not know we don't know. Additionally there is bacon.

16 Responses so far.

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  1. funksands says:

    What’s good about the original bill is that even Congress felt that perhaps in the heat of the moment certain provisions would need to be continually renewed rather than become permanent law. Such as:

    1. Authorizing the FBI to use roving wiretaps on surveillance targets
    2. Allowing the government access to “any tangible items,” such as library records, in the course of surveillance
    3. Allowing for the surveillance of targets who are not connected to an identified terrorist group.

    When the Act came up for renewal, Patrick Leahy and Rand Paul offered a list of amendments that would have increased Congressional oversight of these types of provisions. The proposed amendments were never voted on and the Act was renewed.

    There have been no significant changes to the Patriot Act since it was passed in 2001. The ACLU, the Heritage Foundation and everyone in between seems to agree with this assessment.

    However, to the administration’s credit, the DOJ has apparently decided to voluntarily adopt many of the proposals outlined in the Leahy/Paul amendments.

    According to Leahy, the DOJ responded to him via letter that they had enacted the following:

    • Implemented a requirement that, when library or bookseller records are sought via a Section 215 order for business records, a statement of specific and articulable facts showing relevance to an authorized investigation must be produced;
    • Adopted a policy requiring the FBI to retain a statement of facts showing that the information sought through a National Security Letter (NSL) is relevant to an authorized investigation, to facilitate better auditing and accountability;
    • Adopted procedures to provide notification to recipients of NSLs of their opportunity to contest any nondisclosure requirement attached to the NSL;
    • Agreed to ensure that NSL recipients who challenge nondisclosure orders are notified by the FBI when compliance with such nondisclosure orders are no longer required;
    • Adopted procedures for the collection, use and storage of information derived from National Security Letters, which were approved by Attorney General Holder on October 1, 2010.

    Leahy also said that DOJ had agreed to work with Congress to determine ways to make additional information publicly available regarding the use of FISA authorities.

    http://leahy.senate.gov/imo/media/doc/AmendmentText-Leahy-PaulAmendment.pdf

    http://blog.constitutioncenter.org/usa-patriot-act-what-has-changed-and-what-hasnt/

    http://www.politifact.com/truth-o-meter/promises/obameter/promise/179/revise-the-patriot-act-to-increase-oversight-on-go/

    http://www.aclu.org/files/pdfs/about/herman_usapaf.pdf

  2. choicelady says:

    These are the three elements left that Obama re-authorized in 2010.

    President Barack Obama, on Saturday, February 27, 2010, signed into law legislation that would temporarily extend for one year, three controversial provisions of the Patriot Act that had been set to expire:[174] [175] [176]

    * Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
    * Allow court-approved seizure of records and property in anti-terrorism operations.
    * Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.

    NOTE THAT THESE HAVE ONCE AGAIN TO BE COURT AUTHORIZED.

    Allow me to say, as a friend of a victim of a Lone Wolf -- I’m all for that. This has as much to do with DOMESTIC TERRORISM as anything else. Keeping such people under surveillance DOES matter to me. ne should also note that it almost NEVER happens. Lone wolves are very dangerous -- think of the guy who just pled guilty in Spokane for setting the bomb at the MLK, Jr. Day event. NO one had him in their sights, and he damned near cost dozens of lives.

    And I am adamant that this is NOT the same thing as setting agents provocateurs on these people. Most of the damage of the “extremists” in movements such as ELF and ALF turned out to be FROM the provocateur. They are disgusting. But keeping a watch on them? Not a problem. Big difference from setting them up. I also don’t have a problem with traffic cameras either. So anyone who thinks I’m selling out here, we can talk.

  3. Great article funk! Very informative. I have always had much respect for Senator Feingold. I was very disappointed to see him lose his seat in the last election. What was it that Ben Franklin said over 200 years ago? Something like, “when we give up liberty for security, we will end up having neither?” Not verbatim, but the essence of the thought is there.
    I think in more than one way, the Islamic extremists have won to a degree. We have lost certain freedoms, we have nearly drained our treasury fighting phantoms and have lost many more American lives than we did in the original attacks. Islamic extremists have weakened our country and the fear they instilled in our people has achieved much it has set out to achieve. And these fanatics had the constant help of the Bush administration in spreading and keeping that fear alive. They used 9/11 over and over again to scare people into giving them what they wanted. And what really gets me is that so many on the right just fail to see these facts. Even still!

    • funksands says:

      KT, it showed me that our lawmakers are not immune to the fears and hysteria that grip the general populace. Indeed they may be more susceptible because they are “in the know”. I find it hard to believe that if 100 average citizens were pulled off the street and asked to vote for the Patriot Act a month after 9-11 occurred that 99 of them would say yes.

    • Emerald1943 says:

      KT,

      I think the quotation you are talking about is this one:

      “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
      — Benjamin Franklin

      I looked it up just today to make a similar point. :-)

  4. ADONAI says:

    Here’s the major problem with 9/11, the Patriot Act, and everything attached to it, and it goes back to your first paragraph.

    American hasn’t really changed. Just gotten more paranoid. Layers of unnecessary bureaucracy and intrusive laws.

    Most Americans lives did not change after 9/11. Most Americans have no attachments to the occupations that followed. Most Americans would gladly trade liberty for perceived security. Just make sure The Bachelor airs on time. They weren’t asked to sacrifice, to give anything to the cause. They were told to shop and keep feeding h machine. And they got A nice fat tax break. Boy, we sure have given a lot.

    No one thinks much about the Patriot Act now a days because we have a Democrat in the White House and people think they don’t do bad things. Never mind the fact he’s had his AG in court defending these awful things since he first took office. People say Obama isn’t using it like Bush did but the papers tell a different story.

    Never mind that the Patriot Act has actually been expanded, that Obama has sought more leeway to wiretap and kidnap people from airports. But why should they worry? They’re busy not giving a shit about unemployment.

    I don’t care if Obama is more “trustworthy”. It’s an authority no one should have. Instead of dismantling the laws that give unjust power to the Presidency, Obama has sought to keep them and even expand them.

    Security and defense is the biggest issue me and Obama differ on. Hell, the President may not even know about half the things they’re doing in his name. Still not an excuse to fight to keep these terrible laws in place. Obama won’t be President forever.

    • funksands says:

      Adonai, in principle I agree with you. That’s the problem with extraordinary powers. They are pretty nice to have. Even the most well meaning administration is going to find it nearly impossible to dismantle the security apparatus that was feverishly set up for 8 years under Bush. And after a while, they are simply too useful to get rid of at all. Creeping normalcy.

      I think many of the arguments that CLady is making have some merit though as the examples of the DOJ enforcing law “as pled” by the prior administration exist.

      I also think that the voluntary measures that the DOJ and the administration say they have put in place to moderate some aspects of the Patriot Act on an executive and law-enforcement basis are good. Voluntary by definition though is just that. The next administration is not compelled to follow the same guidelines.

    • choicelady says:

      OK Adonai -- here is the rub. Obama via Holder has defended EVERYTHING that Bush had in the works. Every administration does that. Why? Because to start over takes YEARS to get a reading. Different administrations don’t get to change the pleading unless they want to risk having the EXISTING plea resolution stand in place while they go back to square one.

      For example, on every single issue around torture, Obama continued the cases AS PLED by Bush. In every single case, the appellate court shot them down. AND Obama and Holder rested with the decisions. They knew the SCOTUS would probably uphold Bush. Those cases have never been moved forward thereby KILLING the Bush Doctrine flat out. The clock will run out on many of these issues, and therefore the Bush Doctrine cannot be revived by SCOTUS.

      Brilliant, IMHO.

      Same with DOMA, same with Patriot Act. Some of the PA has been struck down, some upheld. It is no longer completely what it was. The parts shot down were not appealed any further. But not all of it was shot down -- SCOTUS upheld parts of it. That makes it almost impossible to alter without yet another anti-PA bill. And like we’re going to get that, right? The SCOTUS ruling was June 2010 before the election.

      On the OTHER hand, this administration pled and GOT restoration of habeus corpus for Guantanamo detainees -- SCOTUS upheld that. Done deal -- even though they pled the Bush way. They have been very careful to shepherd parts through -- and no one else can do that.

      So taking the form -- pleadings that are Bushian in origin -- for the substance -- Obama’s restoration of many rights and ending of the Bush doctrine -- is PL thinking. The substance matters, NOT the form. It is not necessary for an administration to play to the crowd to get justice done.

      • ADONAI says:

        choice, Then why do they actively defend extraordinary rendition and the illegal acquisition and recording of phone calls and e-mails? They block ACLU challenges to it and invoke “states secrets” privileges.

        It seems like they’re reinforcing the Bush Doctrine. Not working to end it. Do they HAVE to do these things to ultimately end it all? If so, I get it. But why push so hard to keep these practices in place?

        • choicelady says:

          Yes, AD -- they DO have to defend this as written. But they have a choice that has been outstanding and that is NOT to take most of these issues to SCOTUS.

          If they decided to re-enter the plea and object or rewrite it with different language, it would start all over again, and they could not USE their own new version without the court appeals. So either way the law as Bush wrote it would STAND while the new version would work its way through the courts -- ACLU and human rights groups would also have to challenge the OLD law that is still on the books and RW people would challenge the new. There’d be no clear ruling as these have become.

          Defending the law may look bad, but it’s been the fastest course to overturning it that they could take. Only the administration has the right to move to SCOTUS -- and they have not done it. And the clock will run out on a lot of it.

          See what stood (above) in the re-authorization -it was COURT ORDERED warrants. It should have expired in Feb. 2011 -- and frankly I’ve lost what happened earlier this year. I will try to find it, but since it did not make a big dent in our impressions, it may also have expired. Not sure what they are doing now, but if it expired, then it’s NOT HAPPENING. Unlike Bush, this administration would not thwart basic constitutional safeguards. The basic Constitutional procedures would overcome anything the PA might specifically have provided for.

          Again, and thank you, Caru, it’s bloody brilliant.

          I worked closely with the federal court system back east, both under Clinton and then very early days of Bush, and the Asst. US Attorney I knew said that the process is always to find the lowest level of proof needed to get your results.

          Easiest thing here? Get to a friendly jurisdiction, let the courts overturn the rulings, stand fast on the results and don’t appeal them. If we get our knickers in a twist over the administration’s “defense” of these issues rather than the outcomes that we WANT, we are being naive. That is actually detrimental to the outcomes we want.

          However -- I’m not averse to Dickens’ Mr. Bumble stating, “the law is an ass.” It is one of many reasons I am fascinated by law, especially common law, but am NOT an attorney. Can’t deal with the process even when I like the outcomes.

      • Caru says:

        You’re right, that is brilliant.

  5. choicelady says:

    At the exact moment that FISA warrants were being dismissed as unnecessary to keep this nation safe by undermining the Fourth Amendment’s prohibition against unreasonable searches and seizures, they were demanded for searches that would lead authorities to the whereabouts of a murder suspect, one who had brutally assassinated a doctor by shooting him through his kitchen window. The suspect had fled the country but had associates believed to know his whereabouts and aiding and abetting him monetarily in his flight from justice. HIS rights were secure, reinforced by the same Attorney General, John Ashcroft, who so wantonly avoided the same due diligence for Muslim Americans. But this murder suspect was white, Christian, and driven, he claimed, by God. So despite his alliance with the radical domestic terrorist group, the Army of God that had sworn the right to murder those they disliked, he got Fourth Amendment protection while so many others who were simply NOT white Christians, did not.

    As one targeted by the previous administration, albeit it came to nothing, I know this administration has changed things dramatically. The Patriot Act may still exist -- it is not being exercised the same way. It may not be perfect with respect to overseas surveillance, and that needs fixing, but it is not being used illegally, without warrants, and at random to spy on citizens or non-citizens inside the US, and that is a huge step forward in Constitutional respect.

    What scares me is the willingness too many people have to even entertain the idea that a change of administration would be GOOD. The people running are not at all interested in our rights but in only their own power to exercise their prejudices. The Constitution is meaningless to them.

    If we desire a nation that is ruled by laws, first we have to elect people who also believe that laws are paramount. That would NOT include the people now running in opposition to this administration. We all have reason to be afraid of them.

    • Emerald1943 says:

      Hi CL!

      You bring up a good point…that some people think that a change of administration is a good thing. President Obama may not be enforcing aspects of the Patriot Act as his predecessor did, but as far as I know, the law is still on the books. That is the dangerous part…that repubs could take over and begin “exercising their prejudices” all over again! IMO, the sooner we repeal the Patriot Act, the better, although I don’t expect to see this on the agenda any time soon.

      It’s a shame that Russ Feingold is not running for re-election. We need his voice in the Senate as one of few advocates for the protection of our rights! You are right…we do have reason to be afraid of those “other guys”!

      • choicelady says:

        I think people -- white, middle class, privileged -- think this is NEVER about them. Our collective willingness to let things go because…it’s about “them”, the bad guys…means we don’t consider how we might run afoul of the people in power.

        Suppose you’re a Republican who likes a glass of wine now and then. Like Boehner! But these bozos think you should NOT and impose, without a constitutional amendment, a ban on alcohol. Suppose you’re a middle class guy who, ahem, fools around now and then but is responsible enough to use protection. That is banned.

        Thinking that can’t happen here? Already did in 1920. Could well happen with condoms since these folks think no one should use them. NO ONE.

        So to get the goods on you, they do warrantless “sneak and peek” entries. They did that WITH a warrant for the assassin’s friends, but they might consider you an enemy of God’s state and too dangerous to need a warrant.

        People have NO idea how fast liberties can expire in the wrong hands.

        Feingold has his problems -- protected tax extensions for the rich even when he did not have to do it as a package deal to get other things. But yeah -- on civil liberties he was GREAT.

        And all the little suburbanites who think this doesn’t mean anything to them? Think again.

  6. Emerald1943 says:

    Funk, thank you for posting this article. It is sobering and shows just how quickly our rights and freedoms can be taken away. It also shows that once those rights and freedoms are taken away, it is so difficult to get them back. With no limits written into the bill, we can expect to live with this for a very long time. It shows what happens when people are afraid.

    It shows that not even our elected officials are immune to irrational fear. We expect them to represent us, using level-headed and reasoned debate, but it is obvious that even our Congressmen and Senators can be manipulated to summarily dismiss some of our most basic rights with no thought on how to restore those rights. It is as if the Fourth Amendment has been stricken from the Constitution without even as much as a blink of an eye!

    I remember those days just after the attacks. Suddenly it seemed that if one criticized the rush to Bush’s “war on terror”, one would be called a traitor to the country. I remember that feeling of paranoia that I had not felt since the Vietnam era. It used to be that “if you’ve done nothing wrong, you have nothing to worry about”. With the passage of the Patriot Act, that no longer holds true. You can be arrested and held for your “associations”. Even Greenpeace was mentioned! How many of us here may have inadvertently been associated with or donated to an organization deemed “terrorist” by some over-zealous Justice Department lawyer?

    I applaud Russ Feingold for his defense of our Constitutional rights. Let us hope that he and others like him can once again bring some cool-headed decision-making back to Congress. The Patriot Act should be repealed and provisions re-written to protect our rights while still going after those would would harm us. If we give up those rights without a fight, then the terrorists have won.

    “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
    — Benjamin Franklin


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