- Congress approved a bill on Friday that expands the reach
of the Patriot Act, reduces oversight of the FBI and intelligence agencies
and, according to critics, shifts the balance of power away from the legislature
and the courts.
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- A provision of an intelligence spending bill will expand
the power of the FBI to subpoena business documents and transactions from
a broader range of businesses -- everything from libraries to travel agencies
to eBay -- without first seeking approval from a judge.
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- Under the Patriot Act, the FBI can acquire bank records
and Internet or phone logs simply by issuing itself a so-called national
security letter saying the records are relevant to an investigation into
terrorism. The FBI doesn't need to show probable cause or consult a judge.
What's more, the target institution is issued a gag order and kept from
revealing the subpoena's existence to anyone, including the subject of
the investigation.
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- The new provision in the spending bill redefines the
meaning of "financial institution" and "financial transaction."
The wider definition explicitly includes insurance companies, real estate
agents, the U.S. Postal Service, travel agencies, casinos, pawn shops,
ISPs, car dealers and any other business whose "cash transactions
have a high degree of usefulness in criminal, tax or regulatory matters."
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- Justice Department officials tried earlier this year
to write a bill to expand the Patriot Act. A draft -- dubbed Patriot II
-- was leaked and caused such an uproar that Justice officials backed down.
The new provision inserts one of the most controversial aspects of Patriot
II into the spending bill.
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- Intelligence spending bills are considered sensitive,
so they are usually drafted in secret and approved without debate or public
comment.
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- Chris Schroeder, a Duke law professor and former assistant
attorney general in the office of legal counsel at the Justice Department,
said the re-insertion shows that "people who want to expand the powers
of the FBI didn't want to stop after Patriot II was leaked."
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- "They are going to insert these provisions on a
stealth basis," Schroeder said. "It's insidious."
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- James X. Dempsey, executive director of the Center for
Democracy and Technology, echoed Shroeder's analysis.
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- "On its face, it's a cryptic and seemingly innocuous
amendment," Dempsey said. "It wasn't until after it passed both
houses that we saw it. The FBI and CIA like to try to graft things like
this into intelligence bills."
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- House Intelligence Committee chairman Porter Goss (R-Florida)
defended the new definition, saying it was necessary to keep pace with
terrorists and the changing economy.
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- "This provision brings the definition of 'financial
institution' up to date with the reality of the financial industry,"
Goss said on the House floor. "This provision will allow those tracking
terrorists and spies to 'follow the money' more effectively and thereby
protect the people of the United States more effectively."
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- The expansion surprised many in Congress, including some
members of the intelligence committees who recently began reconsidering
the scope of the Patriot Act.
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- Timothy Edgar, legislative counsel for the American Civil
Liberties Union, decried the expansion of an executive power that is not
subject to judicial oversight.
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- "The more that checks and balances against government
abuse are eroded, the greater that abuse," Edgar said. "We're
going to regret these initiatives down the road."
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- National security letters, or NSLs, are among the most-used
antiterrorism powers, and are among the least-known or scrutinized. The
Bush administration has pushed to expand their use. In the spring, it tried
unsuccessfully to allow the CIA and the military the right to issue such
subpoenas.
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- The FBI says it can't say how many times it has issued
itself NSLs because of national security. A few weeks ago, civil liberties
groups forced the Justice Department to release some of those records,
but Justice handed over a six-page, blacked-out list.
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- Other portions of the funding bill eliminate annual reports
to Congress on several controversial matters, such as foreign companies'
involvement in the spread of weapons of mass destruction, the effectiveness
of the intelligence community and antidrug efforts.
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- The bill also nixes reports on how many times national
security letters are used to access individuals' credit reports.
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- After a joint committee reconciled the two versions of
the bill, both houses had to vote to approve the compromise version, which
is usually considered a formality. While Friday's Senate vote was a voice
vote, on Thursday, 15 Republicans in the House broke ranks and voted against
the entire intelligence-funding bill in protest of the national security
provision. The bill passed by a vote of 264 to 163.
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- Though debate was limited, a handful of representatives,
including Butch Otter (R-Idaho), spoke out against the bill.
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- "In our fight for our nation to make the world a
safe place, we must not turn our backs on our own freedoms," Otter
said. "Expanding the use of administrative subpoenas and threatening
our system of checks and balances is a step in the wrong direction."
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- The ACLU's Edgar said he was surprised by the extent
of the Republican defections. It shows how views in both parties have changed
about granting unchecked antiterrorism powers.
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- Edgar also argued the extension may anger strong interest
groups -- such as casinos, Realtors and travel agents -- who previously
weren't part of the civil liberties debate.
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- "They had no idea this was coming," Edgar said.
"This is going to help to continue to expand the list of people and
organizations that are asking questions about civil liberties and Patriot
Act powers."
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- Members of Congress who were upset by the provisions
and the process that led to their passage may hold hearings on the matter
early next year.
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- Neither the chairman of the Senate Select Committee on
Intelligence, Sen. Pat Roberts (R-Kansas) nor the ranking minority member,
Sen. Jay Rockefeller (D-West Virginia), responded to requests for comment.
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- The FBI directed press calls to the Department of Justice,
which didn't respond by press time.
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- The Justice Department has vigorously defended its use
of the Patriot Act for both terrorist and nonterrorist investigations and
set up a website to respond to its critics.
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