Every Breath You Take, or, Surveillance Nation

jbone at place.org jbone at place.org
Tue Jan 6 08:22:28 PST 2004

Looks like Bush is a Brin fan...


Bush Grabs New Power for FBI
By Kim Zetter

Story location: http://www.wired.com/news/privacy/0,1848,61792,00.html

02:00 AM Jan. 06, 2004 PT

While the nation was distracted last month by images of Saddam 
Hussein's spider hole and dental exam, President George W. Bush quietly 
signed into law a new bill that gives the FBI increased surveillance 
powers and dramatically expands the reach of the USA Patriot Act.

The Intelligence Authorization Act for Fiscal Year 2004 grants the FBI 
unprecedented power to obtain records from financial institutions 
without requiring permission from a judge.

Under the law, the FBI does not need to seek a court order to access 
such records, nor does it need to prove just cause.

Previously, under the Patriot Act, the FBI had to submit subpoena 
requests to a federal judge. Intelligence agencies and the Treasury 
Department, however, could obtain some financial data from banks, 
credit unions and other financial institutions without a court order or 
grand jury subpoena if they had the approval of a senior government 

The new law (see Section 374 of the act), however, lets the FBI acquire 
these records through an administrative procedure whereby an FBI field 
agent simply drafts a so-called national security letter stating the 
information is relevant to a national security investigation.

And the law broadens the definition of "financial institution" to 
include such businesses as insurance companies, travel agencies, real 
estate agents, stockbrokers, the U.S. Postal Service and even jewelry 
stores, casinos and car dealerships.

The law also prohibits subpoenaed businesses from revealing to anyone, 
including customers who may be under investigation, that the government 
has requested records of their transactions.

Bush signed the bill on Dec. 13, a Saturday, which was the same day the 
U.S. military captured Saddam Hussein.

Some columnists and bloggers have accused the president of signing the 
legislation on a weekend, when news organizations traditionally operate 
with a reduced staff, to avoid public scrutiny and criticism. Any 
attention that might have been given the bill, they say, was supplanted 
by a White House announcement the next day about Hussein's capture.

James Dempsey, executive director of the Center for Democracy & 
Technology, didn't see any significance to the timing of Bush's 
signing. The 2004 fiscal year began Oct. 1 and the Senate passed the 
bill in November. He said there was pressure to pass the legislation to 
free up intelligence spending.

However, Dempsey called the inclusion of the financial provision "an 
intentional end-run" by the administration to expand the 
administration's power without proper review.

Critics like Dempsey say the government is trying to pass legislation 
that was shot down prior to the U.S. invasion of Iraq, when the Bush 
administration drafted a bill to expand the powers of the Patriot Act.

The so-called Patriot Act II was discovered by the Center for Public 
Integrity last year, which exposed the draft legislation and initiated 
a public outcry that forced the government to back down on its plans.

But critics say the government didn't abandon its goals after the 
uproar; it simply extracted the most controversial provisions from 
Patriot Act II and slipped them surreptitiously into other bills, such 
as the Intelligence Authorization Act, to avoid raising alarm.

Dempsey said the Intelligence Authorization Act is a favorite vehicle 
of politicians for expanding government powers without careful 
scrutiny. The bill, because of its sensitive nature, is generally 
drafted in relative secrecy and approved without extensive debate 
because it is viewed as a "must-pass" piece of legislation. The act 
provides funding for intelligence agencies.

"It's hard for the average member to vote against it," said Dempsey, 
"so it makes the perfect vehicle for getting what you want without too 
much fuss."

The provision granting increased power was little more than a single 
line of legislation. But Dempsey said it was written in such a cryptic 
manner that no one noticed its significance until it was too late.

"We were the first to notice it outside of Congress," he said, "but we 
only noticed it in September after it had already passed in the House."

Rep. Goss Porter (R-Florida), chairman of the House Intelligence 
Committee that reviewed the bill, introduced the legislation into the 
House last year on June 11, where it passed two weeks later by a vote 
of 264-163. The Senate passed the legislation with a voice vote in 
November, which means there is no record of how individual senators 
voted or the number who opposed or supported it.

Porter's staff said he was out of the country and unavailable for 
comment. But Porter told the House last year that he believed the 
financial institution provision in the bill brought the intelligence 
community up to date with the reality of the financial industry.

"This bill will allow those tracking terrorists and spies to 'follow 
the money' more effectively and thereby protect the people of the 
United States more effectively," he said.

But Rep. Betty McCollum (D-Minnesota), who opposed the legislation, 
told the House, "It is clear the Republican leadership and the 
administration would rather expand on the USA Patriot Act through 
deception and secrecy than debate such provisions in an open forum."

A number of other representatives expressed concern that the financial 
provision was slipped into the Intelligence Act at the 11th hour with 
no time for public debate and against objections from members the 
Senate Judiciary Committee, which normally has jurisdiction over the 
FBI. Sen. Patrick Leahy (D-Vermont), the minority leader of the Senate 
Judiciary Committee, along with five other members of the Judiciary 
Committee, sent a letter to the Intelligence Committee requesting that 
their committee be given time to review the bill. But the provision had 
already passed by the time their letter went out.

"In our fight to protect America and our people, to make our world a 
safer place, we must never turn our backs on our freedoms," said Rep. 
C.L. "Butch" Otter (R-Idaho) in a November press release. "Expanding 
the use of administrative subpoenas and threatening our system of 
checks and balances is a step in the wrong direction."

Charlie Mitchell, legislative counsel for the American Civil Liberties 
Union, said many legislators failed to recognize the significance of 
the legislation until it was too late. But the fact that 15 Republicans 
and over 100 Democrats voted against the bill in the House signifies 
that, had there been more time, there probably would have been 
sufficient opposition to remove the provision.

"To have that many people vote against it, based on just that one 
provision without discussion beforehand, signifies there is strong 
opposition to new Patriot Act II powers," Mitchell said.

He said legislators are now on the lookout for other Patriot Act II 
provisions being tucked into new legislation.

"All things considered, this was a loss for civil liberties," he said. 
But on a brighter note, "this was the only provision of Patriot II that 
made it through this year. Members are hearing from their constituents. 
I really think we have the ability to stop much of this Patriot Act II 
legislation in the future."

End of story

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