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Fortunate News about the U.S.A. P.A.T.R.I.O.T. Act

February 9, 2011

From the perspective of Barack Obama and the leadership of the Republican and Democratic parties, a bill for keeping in place several “key provisions” of the U.S.A. P.A.T.R.I.O.T. Act accidentally failed to pass yesterday.

To review, the three expiring provisions, which were extended for a year at the end of last February, are:

The “roving wiretap” provision allows the FBI to obtain wiretaps from a secret intelligence court, known as the FISA court, without identifying what method of communication is to be tapped.

The “lone wolf” measure allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist. The government has said it has never invoked that provision, but the Obama administration said it wanted to retain the authority to do so.

The “[…]records” provision allows FISA court warrants for any type of record, from banking to library to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation.


It is fortunate news that these provisions failed to receive extension. But let us be clear about what has happened. Simply the paper cover for what U.S. intelligence services will likely continue to do whether or not the law on the books authorizes them has been removed. That may have a slight benefit. But we already know that from a legal point of view U.S. intelligence, and more generally U.S. law enforcement, essentially do what they want without any real accountability. This is especially true of covert U.S. intelligence. Many of their most invasive information gathering procedures against Americans require authorization from secret courts, but investigations by the U.S. justice department have found that in thousands of cases the F.B.I. has decided that not even that is necessary.

Update: The failure to pass an extension of those expiring provision is likely just a temporary turn around. It appears that the extension is expected to pass under other House rules.

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