Bush administration pressed to defend Patriot Act Again

Bush administration has not been forthcoming with specific information about how the Justice Department has employed the tools granted by the Patriot Act.

Tuesday, February 21, 2006 3:37 PM

The country's top federal law enforcement officer disclosed to Congress on Tuesday that the USA Patriot Act was used to investigate a Portland-area attorney wrongly accused last year in the deadly bombing in Madrid, Spain, though he did not say how the controversial law was used.

U.S. Attorney General Alberto Gonzales told the Senate Judiciary Committee that two provisions, including one covering electronic surveillance, were used to investigate Brandon Mayfield.

Mayfield's attorneys have insisted that the federal government acknowledge its use of the Patriot Act to spy on him citing Mayfield's exoneration and the FBI's subsequent public apology.

His lawyers have asked federal authorities to return or destroy everything they took in the searches, but a federal judge has denied the request.

"We do not even know how many times the FBI broke into the Mayfield home or who jimmied the locks to gain entry," said Mayfield attorney Gerry Spence.

Justice officials, Spence said, have not disclosed "where they hid the microphones -- in the Mayfield bedrooms or under the kitchen table -- or whether with their sophisticated surveillance equipment, the FBI eavesdropped on this family's private life from outside their home or tapped their phones."

Mayfield, a Muslim convert, was a suspect in the March 11, 2004, Madrid bombing because authorities initially connected him to a fingerprint lifted from a bag near the blast site. The bombing killed 191 people. 

It turned out to be the wrong match. Mayfield was jailed for two weeks in May as a material witness before he was cleared of any connection to the Madrid attack. He is suing the federal government.

Correcting his statement

Gonzales initially repeated the federal government's position that the Patriot Act was not used in Mayfield's case. "I think we have said publicly -- if not, I guess I'm saying it publicly -- that the Patriot Act was not used," Gonzales said.

However, later in the hearing, Gonzales corrected himself, saying, "I'm advised that there were certain provisions of the Patriot Act that apparently were used."

Two weeks ago, federal officials acknowledged that Mayfield was the target of electronic surveillance as part of the investigation into the bombing.

In a letter to Mayfield's lawyers, Justice attorney Sara Clash-Drexler wrote that during the secret searches of Mayfield's home, agents copied three hard drives from three desktop computers and one loose hard drive; digitally copied several documents in his home; took 10 DNA samples and preserved them on cotton swabs; and seized six cigarette butts for DNA analysis. Agents also took about 335 digital photographs of Mayfield's house and property.

How Many Times?

The Bush administration has used the Patriot Act's powers to listen to cell phone conversations and examine business records 84 times in three and-a-half years.Several lawmakers want to limit "roving wiretaps" and make it harder for the government to examine business records.Gonzales says he's open to the idea of tweaking the law, to eliminate concerns that have cropped up since it was implemented.  Would that include all the ones that the administration still has kept secret, or didn't tell the public about?

The Associated Press FBI Director Robert Mueller tells the Senate Judiciary Committee yesterday that the agency often uses cooperation versus search warrants.

Gonzales and FBI Director Robert Mueller urged lawmakers to expand the bureau's ability to obtain records in terrorism cases without first asking a judge or grand jury. One of those provisions is the "library provision", a section permitting secret warrants for "books, records, papers, documents and other items" from businesses, hospitals and other organizations.

“Al-Qaida and other groups remain a grave threat to our country, and now is not the time for us to relinquish our tools in that fight,” Gonzales told the Senate Judiciary Committee.

Several lawmakers are introducing legislation to curb major parts of the Patriot Act. Their bill (SAFE  Security and Freedom Enhancement Act, or SAFE Act, is sponsored by Sens. Dick Durbin, D-Ill., Larry Craig, R-Idaho, Russell Feingold, D-Wis., and Ken Salazar, D-Colo. ) would limit “roving wiretaps” that allow authorities to monitor a suspect’s cell phones and would raise the standard of proof the government has to meet before getting secret warrants to examine business records.

The administration also is being pressed to defend other Patriot Act sections that do not expire in December.

Foremost among these are “"sneak and peek"” or delayed-notification warrants, which allow federal officials to search suspects’ homes without telling them until later.

Section 213 of the Patriot Act authorizes so-called sneak-and-peek entries in cases where alerting someone that a surreptitious search took place may have an "adverse result" on a police investigation. Eventually the owner of the home or office is supposed to be notified, though the law says that deadline can be "extended" without limit if police make a good case for it. Sec. 213 is not scheduled to expire.

Even though the Patriot Act was enacted as a response to the threat of terrorism, Section 213's powers are not limited to investigations of terrorists or spies. Instead, sneak-and-peak searches may be used toinvestigate any federal felony or misdemeanor, from firearms violations to marijuana possession and copyright infringement.

The Justice Department said federal prosecutors have asked for 155 such warrants since 2001. Thats a lot more than the government quote of 84.

Justice John Paul Stevens wrote in a dissent of a case: "Until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement." William Brennan and Thurgood Marshall joined the dissent.

Gonzales and FBI Director Robert Mueller urged lawmakers to expand the bureau's ability to obtain records in terrorism cases without first asking a judge or grand jury.

For what? To spy on any and all Americans for any and all perceived crimes? This is the same Alberto Gonzales who said, while still serving as White House Counsel, the Constitution is an outdated document.”

Under the current provisions, federal agents merely need to tell a judge that the investigation is related to a terrorism investigation.

Bigger budget

The Homeland Security budget is growing too. President Bush is requesting $34.2 billion for fiscal 2006, up from $31.9 billion this year and $29.9 billion in 2004.

Included in Bush's 2006 request is $600 million for a Targeted Infrastructure Protection program (here's an FYI, that acronym is TIP, sound familiar? It should, that is where the Bush Administration asks people to spy on each other. Mailmen were to report unusual goings on on thier mail routes to authorities, YOU were to watch your neighbors and report them) of course, its not the same program.) to help local governments reduce the vulnerability of chemical facilities, ports and transit centers.

Criticism

Criticism of the Patriot Act has led five states and 375 communities in 43 states to pass anti-Patriot Act resolutions, the ACLU says. These communities represent approximately 56.2 million people.

Even some Republicans are concerned. Senate Judiciary Chairman Arlen Specter, R-Pa., has suggested it should be tougher for federal officials to use that provision. "We have heard over and over again that there have been no abuses as a result of the Patriot Act," Sen. Patrick Leahy, a Democrat from Vermont, said during a hearing Tuesday. "But it is difficult, if not impossible, to verify that claim when some of the most controversial surveillance powers in the Patriot Act operate under a cloak of secrecy."

While the government has occasionally offered statistics revealing how many times various kinds of searches have been employed, the Bush administration has not been forthcoming with specific information about how the Justice Department has employed the tools granted by the Patriot Act. Additionally, the ACLU and other critics of the Act have complained that the clandestine nature of the searches and the "gag orders" that accompany them make it difficult to identify people whose rights law enforcement personnel may have violated under the Act. Increased calls for openness come as the Bush administration has taken unprecedented steps to limit public scrutiny of the executive branch.

The number of classified documents has jumped since 2001, Freedom of Information Act disclosures have been curbed, and the wall of secrecy surrounding the Guantanamo Bay detention camp has drawn international condemnation. Open-government watchdog OMB Watch has said that Bush has "vastly expanded the zone of secrecy that surrounds the White House and most of the federal government."

The civil rights organization did, however, manage to challenge one of the provisions in court last year, when an owner of an internet service provider came forward after being served with a "national security letter" by the FBI. National security letters are internally issued by the FBI without the consent of a court, allowing the investigators to obtain information from communications firms and financial and credit institutions.

According to reports, the Patriot Act has been used to:

• Secretly search the home of Brandon Mayfield, a Muslim attorney whom the government wrongly suspected, accused and detained as a perpetrator of the recent train bombing in Madrid.
• Charge, detain, and prosecute a Muslim student in Idaho, Sami al-Hussayen, for providing "material support" to terrorists because he posted to an Internet website links to objectionable materials, even though such links were available on the websites of a major news outlet and of the government’s own expert witness in the case.
• Serve a National Security Letter (NSL) on an Internet Service Provider (ISP) so coercive under the provisions of the NSL statue that a federal court struck down the entire statute - as vastly expanded by the Patriot Act - used to obtain information about e-mail activity and web surfing for intelligence investigations.
• Gag that ISP from disclosing this abuse to the public, and gag the ACLU itself, which represents the ISP, from disclosing this abuse to the public when ACLU became aware of it, and from disclosing important circumstances relating to this abuse and other possible abuses of the gag, even to this very day.
• Investigate and prosecute crimes that are not terrorism offenses, even though it cited terrorism prevention as the reason Congress should enact the law, and cites terrorism prevention as the reason why it cannot be changed.

As a result of that lawsuit, which itself was shrouded in secrecy due to the gag order accompanying the national security letter, a US district court struck down part of that provision in September, citing dual constitutional grounds. Judge Victor Marreo ruled that the national security letters themselves violate the US Constitution’s prohibition against unreasonable searches and seizures, while the gag order violates the right to free speech.

An analysis (PDF file) released by Sen. Jon Kyl, an Arizona Republican, last month said: "Requests to the Department of Justice to provide a comprehensive report assessing the effect and efficacy of the 16 provisions of the Patriot Act subject to 'sunset' remain unfulfilled.

The report stated, "Requests to the Department of Justice to provide a comprehensive report assessing the effect and efficacy of the sixteen provision of the Patriot Act subject to "sunset" remain unfulfilled. Such a report is a critical element in the Subcommittee’s, and indeed the entire Committee’s, responsibility to provide meaningful oversight before determining whether to change the law with respect to these provisions."

Given the proclivity to secrecy in the Bush Administration, those requests may go unanswered.