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1. PATRIOT Act
2. Whistleblowers
3. State Secrets Privilege
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PATRIOT
October 26, 2011: PATRIOT Act Turns 10
This is not a birthday we are happy to celebrate. In the decade since the PATRIOT Act was signed, the Bill of Rights has been under constant attack by all three branches of government. Here is a sampling of press around the country:
Wired: http://www.wired.com/threatlevel/2011/10/patriot-act-turns-ten/
NPR: http://www.npr.org/2011/10/26/141699537/as-it-turns-10-patriot-act-remains-controversial
Washington Post Section 215 story: http://www.washingtonpost.com/world/national-security/fbi-going-to-court-more-often-to-get-personal-internet-usage-data/2011/10/25/gIQAM7s2GM_story.html
Nick Merrill’s op-ed: http://www.washingtonpost.com/opinions/how-the-patriot-act-stripped-me-of-my-free-speech-rights/2011/10/20/gIQAXB53GM_story.html
Carol Rose’s Boston Globe blog: http://boston.com/community/blogs/on_liberty/2011/10/ten_years_of_the_patriot_act.html
Zachary Katnelson’s oped: http://www.kansascity.com/2011/10/23/3214814/commentary-the-patriot-act-cyber.html

May, 2011: PATRIOT Provisions Extended
Unprincipled fear-mongering, outright misrepresentations of the law and pure cowardice led both houses of Congress to pass a four year extension of the expiring PATRIOT Act provisions on May 26. Although Senators Leahy, Wyden, Mark Udall, and Paul offered amendments that could have significantly improved the bill, Senate Majority Leader Reid allowed votes on only two amendments (both, offered by Senator Rand Paul, were soundly defeated and would not have been our top choices for amendments).

In the House, 153 members voted against the extension, 31 Republicans and 122 Democrats (vote tally here, note: provisions were attached to a small business bill). In the Senate, 23 members voted no: Akaka (D-HI), Baucus (D-MT), Begich (D-AK), Bingaman (D-NM), Brown (D-OH), Cantwell (D-WA), Coons (D-DE), Durbin (D-IL), Franken (D-MN), Harkin (D-IA), Heller (R-NV), Lautenberg (D-NJ), Leahy (D-VT), Lee (R-UT), Merkley (D-OR), Murkowski (R-AK), Murray (D-WA), Paul (R-KY), Sanders (I-VT), Tester (D-MT), Udall (D-CO), Udall (D-NM), Wyden (D-OR) (official tally is here).

What is really in the extension?
As we’ve reported many times before, the three expiring provisions include the ‘lone wolf’ surveillance and search orders (which have never been used); roving ‘John Doe’ wiretaps (warrants that do not specify a particular person or place); and, the business records provision (allows for the seizure of any tangible thing). While we think we may understand what authorities each of these provisions gives the government, Senator Ron Wyden (D-OR) has recently warned us that we are wrong, we don’t really have a clue. As a member of the Senate Intelligence committee, Wyden was briefed on the government’s secret interpretation of the business records provision. He says he can’t say what that interpretation is because it is classified (he and Senator Mark Udall (D-CO) offered an amendment to the PATRIOT extension bill that would have required the government to disclose its official interpretation, but the amendment was not voted on). Since the interpretation is secret, we can only guess at what data the government is collecting under the business records provision, obviously an undemocratic situation (as befits the grossly undemocratic PATRIOT Act).

What's next?
The fight continues with some proactive legislation to address some of the worst aspects of the PATRIOT Act:

The JUSTICE Act, sponsored by Senator Tester (to be introduced shortly) enacts critical checks and balances and privacy protections to the vast web of surveillance authorities granted to the executive branch through various pieces of legislation includting the PATRIOT Act. The JUSTICE Act would repeal telecom immunity; limit the use of National Security Letters (NSLs), emergency NSLs, and the use of gag orders placed on recipients of NSLs; ban bulk collection of Americans' communications; protect charitable giving from criminal prosecution; and tighten the use of roving wiretaps.

Geolocation Bill, sponsored by Senators Wyden and Representative Chaffetz: would place important restrictions on government access to the location data stored and transmitted by our cellphones, GPS devices or ‘successor’ devices. Target date for introduction of the bill in both chambers is June 15.

S. 1125, the PATRIOT Act Improvements Act of 2011, sponsored by Senators Leahy, Akaka, Bingaman, Boxer, Cardin, Coons, Durbin, Franken, Gillibrand, Harkein, and Wyden: makes some modest improvements to PATRIOT, many of which the Department of Justice has already agreed to implement administratively. It includes important reporting requirements on the use of National Security Letters and other surveillance tools, but extends the FBI’s NSL authority for an additional year. Senator Leahy introduced this bill the day the PATRIOT extension passed the Senate. Although we appreciate his effort, we can’t support the bill because it includes that extension to NSL authority (which the FBI has routinely abused).

February, 2011: A Major Breakthrough on PATRIOT!
Tea Party/Libertarian Republicans and Progressive Democrats scored a significant victory in February by limiting the extension of the PATRIOT Act to only three months and demanding time for debate and amendments. The Obama Administration had asked for a three year extension.

We have less than 90 days to make sure Congress enacts serious reforms, or repeals the PATRIOT Act. Act Now.

What is H.R. 514?
The bill re-authorizes, without any added civil liberties protections, three controversial provisions of the PATRIOT Act that were set to expire:
Section 206, Roving ‘John Doe’ Wiretaps: warrants that do not specify a particular person or place, contrary to traditional notions of search and seizure, which require the government to state with particularity what it seeks to search or seize;
Section 215, FISA Orders for Any Tangible Thing: allow for the seizure of a tangible thing (a car, computer hard drive...) of a person who need not be a suspected terrorist or even in contact with one;
Section 6001, Lone Wolf Surveillance & Search Orders: allow someone unaffiliated with a terrorist organization to be a target of secret surveillance, which is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. It has never been used.

More details on the expiring provisions, see here.

Opponents Demand Debate
Members of both parties took to the floor of the House and the Senate to remind their colleagues that the PATRIOT Act was passed in a time of trauma and emergency, and sunsets were included to ensure that the Act would be reconsidered and debated. They demanded a full and 'adult' debate about the necessity of the PATRIOT Act.

Senator Durbin (D-IL), supported the 3-month extension saying, "Before I support any additional extensions of the PATRIOT Act, I believe we should have an honest discussion about changes and reforms that are necessary to protect the constitutional rights of innocent Americans." He went on to express his concerns about National Security Letters, gag orders, roving wiretaps and more. Read his entire statement in the Congressional Record here.

Senator Rand Paul (R-KY) opposed even a 3 month extension, calling for debate:

We should have the opportunity to explain why the Constitution is being violated. We should talk about how we do not have to give up who we are in order to fight terrorism. It is not acceptable to willfully ignore the most basic provisions of our Constitution...
As Senators, we should be able to have debate and offer amendments to try to fix the egregious problems with the PATRIOT Act. And Senate leaders have agreed to this. Within 90 days there will be an open debate and amendments on the PATRIOT Act. Senate Majority Leader Harry Reid, publicly committed on the Senate floor this afternoon to a week of examination including amendments and debate...

This provides advocates with a welcome opportunity to press for serious reforms. We don't yet know what amendments will be offered, so check back here for updates (or sign up here for our newsletter and alerts)

What Happened?
Last year, the House passed a one year extension of expiring PATRIOT Act provisions on a vote of 315 to 97. That extension did not include any of the reforms the civil liberties community had pressed for. This year, the House defeated an attempt to extend the provisions by ten months, forcing the Obama White House and Congressional leadership to accept a temporary, three-month extension. The vote this year was 279 to 143, indicating that we have gained 46 pro-civil liberties voters in the House.

Here is a summary of the votes taken in February, click the vote tallylinks to the roll call to find out how your members of Congress voted:

Feb. 8: House defeats 10 month extension. Because this was a procedural vote, we only needed 1/3 of the votes to stop the bill. The vote tally was 277 in favor, 148 opposed, so the bill failed.
Feb. 14: House passes a 10 month extension, 275-144.
Feb. 15: Opposition to any long term extension forces leadership to amend the bill to limit the extension to 3 months. Three month extension passes Senate 86- 12.
Feb. 17: House passes 3 month extension, 279 - 143.

What Lies Ahead?
Many of the most vocal opponents have vowed to support amendments to the bill to protect our rights and privacy. Advocates are encouraging lawmakers to re-introduce a comprehensive bill modeled on companion bills introduced in the House and Senate in 2009 by Senator Feingold and Representative Holt (D-NJ).

The JUSTICE Act (S. 1686; H.R. 4005) takes advantage of the debate over re-authorization of the three PATRIOT Act provisions to enact critical checks and balances and privacy protections to the Patriot Act, the FISA Amendments Act and other surveillance authorities. The JUSTICE Act would repeal telecom immunity; limit the use of National Security Letters (NSLs), emergency NSLs, and the use of gag orders placed on recipients of NSLs; ban bulk collection of Americans' communications; protect charitable giving from criminal prosecution; and tighten the use of roving wiretaps. We expect that the JUSTICE Act will be re-intoduced shortly.

TAKE ACTION!
Click Here or Call the Capitol Switchboard at 202-224-3121 and ask for your Senators' and Representative's offices. Ask to speak to the staff person responsible for Justice Department oversight and tell them:

Stand up for the Constitution and protect the rights and privacy of innocent Americans from government overreach. Because the PATRIOT Act was passed during a time of great trauma and emotion, many reforms are necessary. Specifically, I ask you to support amendments to the PATRIOT Reauthorization that:
1. provide greater protections for National Security Letters (NSLs);
2. limit the use of gag orders on NSL recipients;
3. limit the use of emergency NSLs;
4. ban bulk collection of Americans' communications; protect charitable giving from criminal prosecution;

5.eliminate the ‘lone wolf’ provision;
6. require a description of a target of roving wiretaps;
7. raise the standards for obtaining criminal pen register and trap and trace orders.

If ALL of these reforms are not adopted, vote NO on Reauthorization of the PATRIOT Act.

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Feb. 7, 2011: Congress to Vote on PATRIOT Act Extension
Three provisions of the PATRIOT Act will expire at the end of February, setting the stage for debate in Congress. Unfortunately, the debate is centered on 'how long' to extend the provisions, rather than substance, like how to protect our civil liberties and privacy, and how to strenghten Congressional oversight of the FBI and other intelligence agencies.

Take action: Tell your members of Congress to Vote NO on the PATRIOT Act.

Three provisions of the PATRIOT Act will expire at the end of February 2011, setting the stage for debate in Congress. Unfortunately, the debate is centered on 'how long' to extend the provisions, rather than substance, like how to protect our civil liberties and privacy, and how to strenghten Congressional oversight of the FBI and other intelligence agencies.

Take action: Tell your members of Congress to Vote NO on the PATRIOT Act.

PATRIOT Act Talking Points

For information about the expiring provisions, and why they should NOT be extended. read this letter to Congress from the ACLU

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We're working to improve the layout and update the content on our site. Please come back soon! Meanwhile, here's some old ( I mean, historical) stuff:

Feb., 2010: Patriot Provisions Extended, Despite Pressure

We came, we lobbied… you and hundreds of others called or emailed…but Congress still passed the Patriot Act re-authorization, without any safeguards, oversight or other reforms. On February 3, DDF President Woody Kaplan and I joined with dozens of other activists on Capitol Hill to ask members of Congress to refuse to reauthorize the expiring Patriot Act provisions unless serious reforms were included. The lobby day was sponsored by a number of organizations, but primarily by DDF, the Bill of Rights Defense Committee (BORDC), and the Pakistani American Public Affairs Committee. Our lobby visits were backed up by emails and phone calls of hundreds of activists around the country who took action based on alerts that DDF and BORDC sent out.

These lobby visits, emails and phone calls were crucial; but, in the end, we were not able to mobilize enough voices to counter the prevailing political winds. At the end of the month, the Senate and House both voted to extend the provisions for a year, without any privacy protections or reforms. As is often the case, the procedure used to pass the extension is a bit confusing. Congress had to rush to pass the extension before the provisions were set to sunset, so Senator Reid simply proposed an amendment to the Medicare Physician Payment Reform Act. The amendment was approved by a voice vote in the Senate (so we have no record of who voted for or against). The House then voted to concur with the Senate amendment in a recorded vote: the House vote is here (it was 315-97, with 20 not voting). Yes, the Patriot Act has nothing to do with Medicare Physician Payments, but that bill had to pass quickly, so Congressional leadership just slapped the Patriot Act on to it. Although the procedure is confusing, this was a 'clean' vote on the Patriot Act, there were no other items in the amendment, so we can hold members of the House accountable for their vote..

PATRIOT Act Talking Points
PATRIOT Act Background

Shocking Revelation! FBI Abused Spy Powers!

Apparently, all it takes is a post-it note from an FBI agent to convince AT&T, Verizon and MCI to turn over our telephone records. Really! The latest Inspector General Report on the FBI's abuse of National Security Letters (NSLs) reveals that the FBI illegally collected thousands of telephone records between 2002 and 2006. In some cases, FBI agents cited non-existent terrorism emergencies, but often enough, they simply asked-or scrawled a number on a post-it. In fact, one senior agent described how getting access to our phone records was as easy as "having an ATM in your living room."

This is the third IG report in 4 years to slam the FBI for illegally or improperly collecting information on Americans. The report on 'exigent' letters documents a casual relationship between FBI agents and employees of the telecoms, who all worked together at the FBI's Communications Analysis Center. Apparently FBI agents were not trained, did not understand, or simply ignored legal requirements and FBI policy regarding exigent letters and other requests for telephone records; and the telecom employees also disregarded the law and released information without the proper documentation. One employee said that he didn't think he was supposed to "police the police".

You will no doubt be surprised to learn that FBI Director Mueller says that the practice has been discontinued. But a secret opinion issued by Obama's Office of Legal Counsel (OLC) on January 8, 2010, gave retroactive justification for this improper collection of our phone records. The IG report alludes to the opinion stating "The OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency. "(p. 264) So the Obama administration has defended the improper data collection, AND found some legal theory to allow the FBI to continue the practice- a practice Mueller says they have stopped!

The IG report recommends that the opinion be shared with Congress, "so that Congress can consider [REDACTED] and the implications of its potential use." (p. 268) Senators Wyden (D-OR), Durbin (D-IL) and Feingold (D-WI) have written to Attorney General Holder asking that he release the OLC opinion to Congress immediately.

"Oops, I did it again!" says NSA

In April, 2009, the Obama administration revealed that the NSA had some problems with "overcollection" of domestic communications without a warrant. They vowed to do better, and members of Congress promised to investigate.

According to an article in the New York Times, those congressional investigations revealed that the NSA is still sweeping up the communications (it seems to be mostly e-mails) of thousands of Americans - without warrants. The NSA has responded with the claim that it was all a mistake and that those mistakes are being corrected. Hmmm… have we heard this before? Read more…

Three provisions of the Patriot Act will sunset at the end of this year. Congress should use this opportunity to review and examine all the surveillance laws, and reform or repeal those that have been found unconstitutional or subject to abuse. That review must include not only the Patriot Act, but the FISA Amendments Act and the Attorney General Guidelines (or FBI Guidelines). Under no circumstances should Congress consider renewing these provisions without taking a look at the whole surveillance picture.

 

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