Mylinda Johe's List: patriot act

• Among its detractors are 152 communities, including several major cities and  three states, that have now passed resolutions denouncing the Patriot Act as an assault on  civil liberties. More than one member of Congress has introduced legislation  taking the teeth out of its most invasive provisions. And in a huge shock to the  Justice Department, in July the so-called "Otter Amendment"—which de-funded the  act's "sneak-and-peek" provision—passed in the House by a vote of 309-118.  Introduced by a conservative Republican congressman from Idaho, C.L. "Butch"  Otter, the amendment revealed the extent to which the Patriot Act engenders  jitters across the political spectrum. Then there are the lawsuits, including  one filed recently by the ACLU, urging the court to invalidate provisions of the  act that threaten privacy or due process. All these reforms are wending their  way through the system and the national consciousness as Americans start to take  a sober second look at what the act really unleashed.
• Copies of "Patriot II"—the act that was intended to follow Patriot and  grant the government even broader powers—were leaked to the press last winter,  and while the ensuing ruckus ensured that Patriot II is dead, much of it will  evidently rise again this fall in the guise of the VICTORY Act, Orrin Hatch's  attempt to deploy Patriot powers in the war on drugs.
• The truth of the matter seems to be that while some portions of the Patriot Act  are truly radical, others are benign. Parts of the act formalize and regulate  government conduct that was unregulated—and potentially even more  terrifying—before. Other parts clearly expand government powers and allow it to  spy on ordinary citizens in new ways. But what is most frightening about the act  is exacerbated by the lack of government candor in describing its  implementation.
• Section 215 modifies the rules on records searches.  Post-Patriot Act, third-party holders of your financial, library, travel, video  rental, phone, medical, church, synagogue, and mosque records can be searched  without your knowledge or consent, providing the government says it's trying to  protect against terrorism.

• Previously the government needed at least a warrant and probable  cause to access private records. The Fourth Amendment, Title III of the Omnibus  Crime Control and Safe Streets Act of 1968, and case law provided that if the  state wished to search you, it needed to show probable cause that a crime had  been committed and to obtain a warrant from a neutral judge. Under FISA—the 1978 act authorizing  warrantless surveillance so long as the primary purpose was to obtain foreign  intelligence information—that was somewhat eroded, but there remained judicial  oversight. And under FISA, records could be sought only "for purposes of  conducting foreign intelligence" and the target "linked to foreign espionage"  and an "agent of a foreign power." Now the FBI needs only to certify to a FISA  judge—(no need for evidence or probable cause) that the search protects against  terrorism. The judge has no authority to reject this application. DOJ calls this  "seeking a court order," but it's much closer to a rubber stamp. Also, now the  target of a search needn't be a terror suspect herself, so long as the  government's purpose is "an authorized investigation ... to protect against  international terrorism."

   

  Downplaying the extent of these changes, the DOJ argued to Congress that 215  is no big deal, since grand juries could always subpoena private records in the  past. The difference they don't acknowledge is that investigators may now do so  secretly, and these orders cannot be contested in court.

• Would you know if Section 215 had been used on you? Nope.  The person made to turn over the records is gagged and cannot disclose the  search to anyone.

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• The act "creates the new category of crime called narco-terrorism": [2]

   

   

  The purpose of the bill is "To combat narco-terrorism, to dismantle  narco-terrorist criminal enterprises, to disrupt narco-terrorist financing and  money laundering schemes, to enact national drug sentencing reform, to prevent  drug trafficking to children, to deter drug-related violence, to provide law  enforcement with the tools needed to win the war against narco-terrorists and  major drug traffickers, and for other purposes."
• The Victory Act is, perhaps, a watered-down version of The Domestic Security  Enhancement Act of 2003 or Patriot Act II.

• If passed, the feds would be allowed to:

   
   
  • Clamp down on Arab hawala transactions, where cash exchanged in an honor  system has been funneled to terrorists.  
  • Get business records without a court order in terrorism probes and delay  notification.  
  • Track wireless communications with a roving warrant.  
  • Increase sentences for drug kingpins to 40 years in prison and $4 million in  fines." [5]
   

  The National Consumer  Coalition Privacy Group called the Victory Act "a grab-bag of enhanced police-state  powers."

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• bill reinvents drug offenses as terrorism crimes. The ho-hum label of  "controlled substance offense" will get a glossy makeover as many routine drug  crimes become elevated into crimes of "Narcoterrorism."
• The bill was drafted by worker bees in the office of Sen. Orrin Hatch (R.-UT.)
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  Provisions in the draft would:

   

  * Raise the threshold for rejecting illegal wiretaps. The draft reads: "A  court may not grant a motion to suppress the contents of a wire or oral  communication, or evidence derived therefrom, unless the court finds that the  violation of this chapter involved bad faith by law enforcement."

   

   

   

  * Extend subpoena powers by giving giving law enforcement the authority to  issue non-judicial subpoenas which require a person suspected of involvement in  money laundering to turn over financial records and appear in a prosecutor's  office to answer questions.

   

  * Extend the power of the attorney general to issue so-called administrative  "sneak-and-peek" subpoenas to drug cases. These subpoenas allow law enforcement  to gather evidence from wire communication, financial records or other sources  before the subject of the search is notified.

   

  * Allow law enforcement to seek a court order to require the "provider of an  electronic communication service or remote computing service" or a financial  institution to delay notifying a customer that their records had been  subpoenaed.

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• It includes a raft of provisions increasing the government's ability to  investigate, wiretap, prosecute and incarcerate money launderers, fugitives,  "narco-terrorists" and nonviolent drug dealers. The bill also outlaws hawalas,  the informal and documentless money transferring systems widely used in the  Middle East, India and parts of Asia.
• Critics say the bill is an opportunistic attempt to link the fight against drugs  to the fight against terrorism by creating a new crime called "narco-terrorism."  According to the draft, narco-terrorism is the crime of selling, distributing or  manufacturing a controlled substance with the intent of helping a terrorist  group.

• Among other things, the bill would:

   
   
  • Allow the FBI to get a wiretap order on a wireless device, such as a cell  phone, from any district court in the country  
  • Force defendants who are trying to exclude illegal wiretap evidence to prove  police intentionally broke the rules  
  • Further restrict judges' sentencing discretion in drug cases  
  • Ease restrictions on government access to sensitive financial records  
  • Increase penalties for selling drugs to people under the age of 21  
  • Make it easier for the government to seize or freeze assets of people  accused of money laundering  
  • Remove gradations of sentencing for those convicted of selling amphetamines  so that anyone convicted of possessing more than 250 meth pills would  automatically go to jail for 200 years  
  • Increase the ability of the FBI to self-issue subpoenas for terrorism  investigations without having to consult a judge
   

  Timothy Edgar, legislative counsel for the American Civil Liberties Union,  said he suspects that the Justice Department was heavily involved in the  drafting of the bill.

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• The USA Patriot Act was passed nearly unanimously by the Senate 98-1, and 357-66  in the House, with the support of members from across the political spectrum.
• The Patriot Act allows investigators to use the tools that were already  available to investigate organized crime and drug trafficking.
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  • Allows law enforcement to use surveillance against more crimes of  terror. Before the Patriot Act, courts could permit law  enforcement to conduct electronic surveillance to investigate many ordinary,  non-terrorism crimes, such as drug crimes, mail fraud, and passport fraud.  Agents also could obtain wiretaps to investigate some, but not all, of the  crimes that terrorists often commit. The Act enabled investigators to gather  information when looking into the full range of terrorism-related crimes,  including: chemical-weapons offenses, the use of weapons of mass destruction,  killing Americans abroad, and terrorism financing.
    
    
     
  • Allows federal agents to follow sophisticated terrorists trained to evade  detection. For years, law enforcement has been able to use "roving wiretaps"  to investigate ordinary crimes, including drug offenses and racketeering. A  roving wiretap can be authorized by a federal judge to apply to a particular  suspect, rather than a particular phone or communications device. Because  international terrorists are sophisticated and trained to thwart surveillance by  rapidly changing locations and communication devices such as cell phones, the  Act authorized agents to seek court permission to use the same techniques in  national security investigations to track terrorists.
    
    
     
  • Allows law enforcement to conduct investigations without tipping off  terrorists. In some cases if criminals are tipped off too early to an  investigation, they might flee, destroy evidence, intimidate or kill witnesses,  cut off contact with associates, or take other action to evade arrest.  Therefore, federal courts in narrow circumstances long have allowed law  enforcement to delay for a limited time when the subject is told that a  judicially-approved search warrant has been executed. Notice is always provided,  but the reasonable delay gives law enforcement time to identify the criminal's  associates, eliminate immediate threats to our communities, and coordinate the  arrests of multiple individuals without tipping them off beforehand. These  delayed notification search warrants have been used for decades, have proven  crucial in drug and organized crime cases, and have been upheld by courts as  fully constitutional.
    
     
  • Allows federal agents to ask a court for an order to obtain business  records in national security terrorism cases. Examining business records  often provides the key that investigators are looking for to solve a wide range  of crimes. Investigators might seek select records from hardware stores or  chemical plants, for example, to find out who bought materials to make a bomb,  or bank records to see who's sending money to terrorists. Law enforcement  authorities have always been able to obtain business records in criminal cases  through grand jury subpoenas, and continue to do so in national security cases  where appropriate. These records were sought in criminal cases such as the  investigation of the Zodiac gunman, where police suspected the gunman was  inspired by a Scottish occult poet, and wanted to learn who had checked the  poet's books out of the library. In national security cases where use of the  grand jury process was not appropriate, investigators previously had limited  tools at their disposal to obtain certain business records. Under the Patriot  Act, the government can now ask a federal court (the Foreign Intelligence  Surveillance Court), if needed to aid an investigation, to order production of  the same type of records available through grand jury subpoenas. This federal  court, however, can issue these orders only after the government demonstrates  the records concerned are sought for an authorized investigation to obtain  foreign intelligence information not concerning a U.S. person or to protect  against international terrorism or clandestine intelligence activities, provided  that such investigation of a U.S. person is not conducted solely on the basis of  activities protected by the First Amendment.
    
• . The Patriot Act facilitated information sharing and cooperation among  government agencies so that they can better "connect the dots."
• • Prosecutors and investigators used information shared pursuant to section  218 in investigating the defendants in the so-called “Virginia Jihad” case. This  prosecution involved members of the Dar al-Arqam Islamic Center, who trained for  jihad in Northern Virginia by participating in paintball and paramilitary  training, including eight individuals who traveled to terrorist training camps  in Pakistan or Afghanistan between 1999 and 2001. These individuals are  associates of a violent Islamic extremist group known as Lashkar-e-Taiba (LET),  which operates in Pakistan and Kashmir, and that has ties to the al Qaeda  terrorist network. As the result of an investigation that included the use of  information obtained through FISA, prosecutors were able to bring charges  against these individuals. Six of the defendants have pleaded guilty, and three  were convicted in March 2004 of charges including conspiracy to levy war against  the United States and conspiracy to provide material support to the Taliban.  These nine defendants received sentences ranging from a prison term of four  years to life imprisonment.
    
• The Patriot Act updated the law to reflect new technologies and new  threats.
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  • Allows law enforcement officials to obtain a search warrant anywhere a  terrorist-related activity occurred. Before the Patriot Act, law enforcement  personnel were required to obtain a search warrant in the district where they  intended to conduct a search. However, modern terrorism investigations often  span a number of districts, and officers therefore had to obtain multiple  warrants in multiple jurisdictions, creating unnecessary delays. The Act  provides that warrants can be obtained in any district in which  terrorism-related activities occurred, regardless of where they will be  executed. This provision does not change the standards governing the  availability of a search warrant, but streamlines the search-warrant  process.
    
     
  • Allows victims of computer hacking to request law enforcement assistance  in monitoring the "trespassers" on their computers. This change made the law  technology-neutral; it placed electronic trespassers on the same footing as  physical trespassers. Now, hacking victims can seek law enforcement assistance  to combat hackers, just as burglary victims have been able to invite officers  into their homes to catch burglars.
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  •  been able to invite officers   into their homes to catch burglars.   
   

  4. The Patriot Act increased the penalties for those who commit  terrorist crimes.
• • Prohibits the harboring of terrorists. The Act created a new offense  that prohibits knowingly harboring persons who have committed or are about to  commit a variety of terrorist offenses, such as: destruction of aircraft; use of  nuclear, chemical, or biological weapons; use of weapons of mass destruction;  bombing of government property; sabotage of nuclear facilities; and aircraft  piracy.
    
     
  • Enhanced the inadequate maximum penalties for various crimes likely to be  committed by terrorists: including arson, destruction of energy facilities,  material support to terrorists and terrorist organizations, and destruction of  national-defense materials.
    
     
  • Enhanced a number of conspiracy penalties, including for arson,  killings in federal facilities, attacking communications systems, material  support to terrorists, sabotage of nuclear facilities, and interference with  flight crew members. Under previous law, many terrorism statutes did not  specifically prohibit engaging in conspiracies to commit the underlying  offenses. In such cases, the government could only bring prosecutions under the  general federal conspiracy provision, which carries a maximum penalty of only  five years in prison.
    
     
  • Punishes terrorist attacks on mass transit systems.
    
     
  • Punishes bioterrorists.
    
     
  • Eliminates the statutes of limitations for certain terrorism crimes and  lengthens them for other terrorist crimes.

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