Expiring Provisions of the Patriot Act Should Be Made Permanent
by: Ken Simon ‘11Despite public assumptions, Bush and Obama agree on Patriot Act
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, better known as the USA PATRIOT Act, has been made into an excessively partisan issue. So one can only imagine the sound bites that will come in the subsequent months as the hearings begin on whether or not to extend several important provisions of the legislation set to expire on December 31. A press release from the office of Senate Judiciary Committee Chairman Patrick Leahy (D-VT) notes that the three provisions set to expire this year are the authorizations for roving wiretaps, the lone wolf provision (the ability to investigate a lone wolf international terrorist), and the Section 215 ordering for tangible things, commonly referred to as the “library records” provision.
All Americans want to see this country’s national security upheld and strengthened, but many Americans are averse to laws that seem to be chopping away at essential rights and liberties. Craig Jones, H-SC alum and current Director for the Graduate School (Arts & Sciences) at Johns Hopkins, asserts, “I’m not totally against the Patriot Act. There are some useful tools in it. I am only against the overreach by the Bush Administration. Believe me, I want the country to be safe too, but we can’t use tactics from the Soviet era to do it.” I am absolutely understanding and respectful of those that disagree with the Patriot Act and these specific provisions set to expire at the end of December, but it is my firm belief that the Patriot Act and its subsequent implementation has kept the United States safer since the attacks of 9/11.
In 2005, FBI director Robert Mueller testified before the Senate Select Committee on Intelligence, saying that the “PATRIOT Act has changed the way the FBI operates, and . . . many of our operational counterterrorism successes since September 11 are the direct result of the changes incorporated in the PATRIOT Act.” With all of this being said, the previously mentioned provisions need not only be extended, but, in fact, need to be made permanent. A mere reauthorization of the provisions leaves our national security at the disposal of political feeling at the time of renewal. The sense of need for such counterterrorism measures may not feel so necessary on a “bright, sunny, safe day in October 2009,” as Director of National Intelligence Dennis Blair infamously declared, nonetheless these measures are vital to the security of the nation and will remain so as long as there is a substantive threat of a sudden strike from both home grown or foreign terrorists.
The usage of roving wiretaps and the ability to access tangible things (i.e. business records, credit cards, bank statements) while controversial to the American public is certainly not a hotly debated topic when it comes to the Office of the President of the United States. An ABC news report by Jason Ryan notes that the Obama administration is in favor of extending both the roving wiretaps and “library records” provisions of the Patriot Act. The report notes that Assistant Attorney General Ronald Weich in a letter sent to Senator Leahy (D-VT) strongly endorsed the use of roving wiretaps, asserting that “We recommend reauthorizing section 206 of the USA PATRIOT Act, which provides for roving surveillance of targets who take measures to thwart FISA [Foreign Intelligence Surveillance Act] surveillance. It has proven an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders.” Kenneth L. Wainstein, Partner at Melveny & Myers LLP and former Assistant Attorney General for National Security at the Department of Justice during the Bush administration, testified last Wednesday before the Senate Judiciary Committee regarding the three expiring provisions of the Patriot Act.
Of roving wiretaps, Mr. Wainstein affirmed that this provision meant that the appropriate authorities “could now secure authorization to maintain continuous surveillance as a target moves from one communication device to another and that this is a critical investigative tool, especially given the proliferation of inexpensive cell phones, calling cards and other innovations that make it easy to dodge surveillance by rotating communication devices.” We see here both a clear and reasonable rationale for roving wiretaps. Instead of being a divisive argument disputing the need for this important provision there is comprehensive agreement between two administrations that most would have assumed were absolutely opposed in regards to the Patriot Act.
Of the tangible things provision, Weich offers another clear endorsement, noting, “We also recommend reauthorizing section 215 of the USA PATRIOT Act, which allows the FISA court to compel the production of business records. The business records provision addresses a gap in intelligence collection authorities and has proven valuable in a number of contexts.” Clearly, these issues seen as highly controversial by the public and members of Congress are not so controversial to the branch of government most responsible in the matters of national security. With the support from President Obama’s administration for the extension of these provisions, putting him in lockstep with the administration of former President George W. Bush, it seems fairly obvious that both the roving wiretap and tangible things provisions should not only be reauthorized, but also be made permanent.
The last, but equally important, provision is the “lone wolf” provision, which is also endorsed by the Obama administration. David Kris, Assistant Attorney General, also testified before the Senate Judiciary Committee last Wednesday, and within the testimony Kris contended that, in regards to the “lone wolf” provision, “While we cannot predict the frequency with which it may be used, we can foresee situations in which it would be the only avenue to affect surveillance.” Assistant Attorney General Kris goes on to note that the Obama administration believes “that it is essential to have the tool available for what we believe will be the rare situation in which it is necessary rather than to delay surveillance of a terrorist in the hopes that the necessary links are established or even to forego it entirely because such links cannot be established.” Once again there is bi-partisan support from the executive branch, undeniably the most important in the matters of foreign affairs, in regards to these important provisions of the Patriot Act. This “lone wolf” provision allows for persistent surveillance of individuals of interest regardless of their status within a specific terrorist organization. There can be no question that the transparency of our legislative system makes it likely that the rules of the game are known to many of the individuals attempting to harm us. Therefore, we must give the necessary powers to the intelligence community so that the national security of the nation may be maintained.
The topic of this article is one that many Americans find hard to dissect. I firmly believe in the individual rights of every American, but we must not confuse legitimate and urgent counterterrorism measures with an outright attack on the liberties of innocent Americans. The imminence of a threat to the national security can never be taken for granted in a post-9/11 world and neither President Obama nor President Bush disagrees with this assertion. Two men seen as absolute opposites in regards to political opinion fundamentally agree on these three provisions within the Patriot Act. James Madison, Former President and contributor to the Federalist papers, put it as well as any individual could in Federalist no. 41, where he asserted, “The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others.”
We should all, as responsible citizens, heed the words of former President James Madison.
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