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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 official. 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 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 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.
Porter Goss (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. Goss's
staff said he was out of the country and unavailable for comment. But Goss 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 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 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." Jen -- |
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