Obama Versus Obama on the Patriot Act
By Leslie Harris
President and CEO of the Center for Democracy & Technology
Yesterday [October 8, 2009], the Senate Judiciary Committee voted to reauthorize three expiring provisions in the USA PATRIOT Act. While the bill they passed strengthened civil liberties in several small ways, the Committee failed to make any meaningful improvements to the Patriot provisions that are most prone to abuse. Disturbingly, Obama Administration officials played a significant behind the scene role in opposing stronger civil liberties protections, directly contradicting Obama’s positions as a Senator.
Two of the most problematic surveillance powers the Patriot Act grants law enforcement are 1) National Security Letters (NSLs) and 2) Section 215 orders. As a Senator, Obama supported reforming both sets of powers “to protect the freedoms of innocent Americans while also ensuring that the government has the power it needs to investigate potential terrorists.” Senator Obama supported these protections through the SAFE Act, which he co-sponsored in the 109th Congress, and also in a signed 2005 letter to his Senate colleagues.
Under the Patriot Act, FBI agents may issue NSLs to obtain comprehensive financial and communications records about anyone, including people suspected of no wrongdoing and no connection to terrorists or foreign powers. To do this, the FBI merely needs to claim the information is relevant to an investigation. Anyone receiving one of these orders is prohibited by law from speaking about it to anyone else, except their attorney. The FBI issues tens of thousands of NSLs each year, most of them directed at U.S. citizens and lawful permanent residents.
As a Senator, Obama favored raising the standard for issuing an NSL to require a link between the records sought and a terrorist, spy, or other agent of a foreign power. Yet the Obama Administration opposed an even weaker standard – one that would require that the government draft an internal statement of “specific and articulable facts” showing that the information sought was somehow relevant to an investigation. Instead, according to the deliberations of the Judiciary Committee, the Administration favored a mere relevance standard.
Section 215 works in a similar manner to NSLs, enabling the FBI to require anyone to produce “tangible things”—such as business records—relevant to an investigation to protect against international terrorism. As Senator, Obama supported an amendment to raise the standard for issuing a Section 215 order to require a link between the records sought and a terrorist, spy, or other agent of a foreign power. The Obama Administration opposed this very change to the Patriot Act, dooming its prospects in the Senate Judiciary Committee.
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