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Let the Patriot Act die

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Invasive provisions about to expire haven’t made us safer

By Coleen Rowley and Philip Leggiere
April 25, 2011

In little more than a month, three of the 160 provisions of the notorious Patriot
Act are set to expire. While federal officials have claimed that Congress must
reauthorize those provisions to keep the nation safe, we should take their claims
with a grain of proverbial salt. Last month, FBI Director Robert Mueller urged
Congress to extend these provisions, set to expire May 27, and even to make
them permanent. Section 215 authorizes secret court orders for business records.
The “Lone Wolf” wiretapping provision allows the government to track
non-U.S. citizens inside the country even if they have no affiliation to a foreign
power or terrorist group. Finally, the “John Doe” roving wiretap
provision allows open-ended wiretapping orders limited neither to a particular
suspect nor particular phones or devices.

Mr. Mueller warned ominously that without these powers, law enforcement and
counterterror investigations would be severely undermined, adding, predictably,
that they are “critical to national security.”

But his words have an all too familiar – and hollow – ring.

Nine years ago, before Coleen Rowley (co-author of this article) retired from
a 24-year career as an FBI special agent, she wrote to Mr. Mueller to point
out some of the bureau’s failures prior to the Sept. 11, 2001, attacks.
A disturbing lack of accountability had followed the attacks with the director
and other officials falsely suggesting that U.S. intelligence agencies lacked
advance knowledge of the attacks. That wasn’t so. Numerous pieces of intelligence
data had poured in during that summer of 2001, including prior warnings from
my colleagues in the Minneapolis field office related to Zacarias Moussaoui.
Moussaoui would later be convicted for his role in the Sept. 11 plot.

It’s been my experience that political or bureaucratic fear-mongering
and “security theater” have all too often trumped effective investigation
and intelligence. Over the decade since the Patriot Act was first enacted, a
large – and increasing – number of American citizens have also learned that
lesson the hard way.

Politicians and federal authorities relentlessly insist that secret and unchecked
government power equal greater security. That formula, however, is not only
inaccurate, but also dangerous both to our liberty and security.

While Mr. Mueller and other Patriot Act supporters – in both parties – clamor
for reauthorization of expiring provisions, Congress should instead consider
the Justice Act, which would curtail most of the documented abuses under Patriot
and restore much-needed limits on executive power.

Under the aegis of the Patriot Act’s expansion of material-support prosecutions,
for instance, charities have been shut down without due process, even when pursuing
projects as laudable as promoting nonviolent conflict resolution in war-torn
areas. Grassroots donors have been imprisoned because the ostensibly humanitarian
organizations to which they contributed got connected to activities those donors
never intended to support. The Justice Act would end these abuses by requiring
prosecutors to prove a defendant’s intent to support violence.

Erosion of prior attorney general guidelines allow the FBI and its joint terrorism
task-force officers to use the most intrusive investigative techniques – such
as planting undercover agentsprovocateur in mosques and peace groups to instigate
violent plots – without any evidence or even suspicion of wrongdoing. Coupled
with the expansion of what’s considered “material support,”
these powers have enabled abuses by encouraging agents to check off statistical
achievements rather than seeking real security.

Last fall’s FBI raids of peace activists across Minneapolis and Chicago
illustrate how this waste and abuse can involve hundreds of agents. Additionally,
in the Iowa heartland before the 2008 Republican National Convention, the FBI
filled hundreds of pages about a few student protesters in Iowa City using costly
surveillance, trash searches and work with terrorism databases and statistical
analysis – all without ever demonstrating the slightest justification or suspicion.

Despite Mr. Mueller’s claims, none of this domestic surveillance has
made Americans any safer. Indeed, the massive data collection that has sprung
up only adds largely irrelevant hay to the haystack, making it even harder to
detect meaningful patterns and anticipate events. In contrast, the Justice Act
would curtail bulk intelligence collection, ensuring that agents focus on real
threats, rather than spying on innocent Americans.

Our nation will soon debate on whether to extend – or, worse yet, permanently
enshrine – the dangerous excesses of the Patriot Act. Rather than take its marching
orders from the executive branch, Congress should stop ongoing abuses and restore
checks and balances on executive power.

A wide-ranging congressional investigation of the sort conducted by the Church
Committee is long overdue. And while Congress musters the will to do its job,
it should consider the Justice Act as an alternative to Patriot reauthorization.

Coleen Rowley was an FBI special agent for almost 24 years. She worked
as legal counsel to the FBI Field Office in Minneapolis from 1990 to 2003. Philip
Leggiere is a journalist whose work has appeared in WIRED and Salon.