Consumer Federation of California

In light of the growing worldwide Occupy Wall Street protests we would do well to revisit how the Patriot Act has been abused by government, not to catch terrorists, but to stifle dissent and consolidate power. Understanding how its been used in the past should make us all very wary about how its probably being used as we speak, and will be used in the future, to target protesters utilizing their First Amendment right to speak out against a deeply corrupted and unjust economic system.

What’s amazing is this movement didn’t start sooner’if only it had back after the 2008 crash perhaps we could have gotten REAL financial reform. The bottom line is the masses are starting to understand that the economic and political game is rigged’.and the only winners are corporations, Wall Street, and the very top of the income ladder. Meanwhile, the middle class is nearly gone and the lower class and poverty is exploding.

Now, just a month after it began we saw large crowds marching in London, Frankfurt, and Rome, in addition to approximately 900 protests in American cities and as many as 2,000 have taken place worldwide.

With that backdrop, let me take you back to some of what I wrote in my op-ed a few months ago entitled "The Patriot Act and the Quiet Death of the US Bill of Rights", with particular attention to the ongoing efforts by a few Senators to expose what they call a "secret" Patriot Act provision.

As you read these DOCUMENTED abuses, keep the Occupy Wall Street protests in mind.

Consider what we know:

‘   As Adam Sewer of the American Prospect notes: ‘It’s no secret that the FBI’s use of NSLs – a surveillance tool that allows the FBI to gather reams of information on Americans from third-party entities (like your bank) without a warrant or without suspecting you of a crime – have resulted in widespread abuses. All that the FBI needs to demand your private information from a third-party entity is an assertion that such information is "relevant" to a national security investigation — and the NSLs come with an accompanying gag order that’s almost impossible to challenge in court.’
‘    NSLs were used by the Bush administration after the Sept. 11, 2001 attacks to demand that libraries turn over the names of books that people had checked out. In fact, there were at least 545 libraries that received such demands in the year following passage of the Patriot Act alone.
‘    The Electronic Frontier Foundation (EFF) uncovered "indications that the FBI may have committed upwards of 40,000 possible intelligence violations in the 9 years since 9/11." It said it could find no records of whether anyone was disciplined for the infractions.
‘    Under the Bush Administration, the FBI used the Patriot Act to target liberal groups, particularly anti-war, environment, and anti-globalization, during the years between 2001 and 2006 in particular.
‘    According to a recent report by the ACLU, there have been 111 incidents of illegal domestic political surveillance since 9/11 in 33 states and the District of Columbia. The report shows that law enforcement and federal officials work closely to monitor the political activity of individuals deemed suspicious, an activity common during the Cold War ‘ including protests, religious activities and other rights protected by the first amendment. The report also noted how the FBI monitors peaceful protest groups and in some cases attempted to prevent protest activities.
‘    According to a July 2009 report from the Administrative Office of the U.S. Courts, only three of the 763 "sneak-and-peek" requests in fiscal year 2008 involved terrorism cases. Sixty-five percent were drug related.

In other words, the "precedent" set by the Patriot Act appears to be serving to accelerate the rapid disintegration of civil liberties in this country.

But let’s go back to what I wrote on the "secret provision": Of equal concern is what we still don’t know about how the government might be using the Act, highlighted by recent statements made by US Senators regarding what they termed "secret Patriot Act provisions".  Senator Ron Wyden ( D-OR ), an outspoken critic of the recent reauthorization, stated, "When the American people find out how their government has secretly interpreted the Patriot Act they will be stunned and they will be angry." As a member of the Senate Intelligence Committee Wyden is in a position to know, as he receives classified briefings from the executive branch.

In recent years, three other current and former members of the US Senate – Mark Udall ( D-CO ), Dick Durbin ( D-IL ), and Russ Feingold ( D-WI ) – have provided similar warnings.  We can’t be sure what these senators are referring to, but the evidence suggests, and some assert, that the current administration is using Section 215 of the Patriot Act – a provision that gives the government access to "business records" – as the legal basis for the large-scale collection of cell phone location records.

The fact that in 2009 Sprint disclosed that law enforcement made 8 million requests in 2008 alone for its customer’s cell phone GPS data for purposes of locational tracking should only add to these legitimate privacy concerns.

I bring this issue up, because just a few weeks ago those same Senators, as reported in the New York Times, attempted to bring this issue to light again.

The NYT reports:

Two United States senators…accused the Justice Department of making misleading statements about the legal justification of secret domestic surveillance activities that the government is apparently carrying out under the Patriot Act.

The lawmakers ‘ Ron Wyden of Oregon and Mark Udall of Colorado, both of whom are Democrats on the Senate Intelligence Committee ‘ sent a letter to Attorney General Eric H. Holder Jr. calling for him to ‘correct the public record’ and to ensure that future department statements about the authority the government believes is conveyed by the surveillance law would not be misleading.

…

Mr. Wyden and Mr. Udall have for months been raising concerns that the government has secretly interpreted a part of the Patriot Act in a way that they portray as twisted, allowing the Federal Bureau of Investigation to conduct some kind of unspecified domestic surveillance that they say does not dovetail with a plain reading of the statute.

The dispute has focused on Section 215 of the Patriot Act. It allows a secret national security court to issue an order allowing the F.B.I. to obtain ‘any tangible things’ in connection with a national security investigation. It is sometimes referred to as the ‘business records’ section because public discussion around it has centered on using it to obtain customer information like hotel or credit card records.

But in addition to that kind of collection, the senators contend that the government has also interpreted the provision, based on rulings by the secret national security court, as allowing some other kind of activity that allows the government to obtain private information about people who have no link to a terrorism or espionage case.

Justice Department officials have sought to play down such concerns, saying that both the court and the intelligence committees know about the program. But the two lawmakers contended in their letter that officials have been misleading in their descriptions of the issue to the public.

First, the senators noted that Justice Department officials, under both the Bush and Obama administrations, had described Section 215 orders as allowing the F.B.I. to obtain the same types of records for national security investigations that they could get using a grand jury subpoena for an ordinary criminal investigation. But the two senators said that analogy does not fit with the secret interpretation.

Read the rest of the article here.

Now let me go back to my analysis of the Patriot Act…again, with the Occupy Protests in mind:

The Patriot Act was sold as an indispensable weapon in the government’s arsenal to fight and "win" the "War on Terror".  We were assured that the sole purpose of these unprecedented powers granted government were to locate and catch terrorists – not raid the homes of pot dealers and wiretap peace activists.  Monitoring political groups and activities deemed "threatening" ( i.e.  environmentalists, peace activists ), expanding the already disastrous and wasteful war on drugs, and eavesdropping on journalists isn’t about fighting terrorism, it’s about stifling dissent and consolidating power – at the expense of civil liberties.

How ironic that the very "tool" hailed as our nation’s protector has instead been used to violate the very Constitutional protections we are allegedly defending from "attack" by outside threats.  What was promised as a "temporary", targeted law to keep us safe from terror has morphed into a rewriting of the Bill of Rights.

John Whitehead explains: "The Patriot Act drove a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments-the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments-and possibly the Thirteenth and Fourteenth Amendments, as well.  The Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience were considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state."

As I also asserted, the Bill of Rights is under siege, particularly the Fourth Amendment, writing, "Some important questions demand answers: Does increasingly intrusive and even unconstitutional anti-terrorism measures actually make us any safer (or less so)? If so, what is the price we are willing to pay for that additional security?

Since 9/11 an undeniable pattern has emerged, from illegal search and seizures to warrantless wiretapping to the GPS tracking of cell phones to airport body scanners to the redefinition of Habeas Corpus to the increasing use of rendition for the purposes of torturing prisoners yet to be charged with a crime to military tribunals replacing courts of law, among many others.

What were once considered unassailable civil liberties granted to ALL citizens are under siege. The consequences of such a loss would be profound. Without the fundamental reform of the Patriot Act I fear this loss will be a permanent, and the American experiment will forever be altered.

So let us hope that the desperately needed, and incredibly hopeful Occupy Wall Street protests, and protesters, are not  the target of aggressive and unconstitutional Patriot Act abuses (we’ve already seen how law enforcement has overreached) – as in the past. Of course, "hoping" is no solution to the constitutional crises we face in this country – epitomized by the Patriot Act (and court rulings like Citizens United).

Just as the protesters are absolutely correct in their focus on wealth disparity, Wall Street corruption and criminality, and our transformation into something resembling an oligarchy more than a true democracy, we should also remember that since 9/11 the US Bill of Rights has been under assault, with the Patriot Act serving as the battering ram. So, while we must address economic justice issues so too must we demand reforms to, and even repeal of, the worst components of a law (the Patriot Act) that was in part DESIGNED to counter and stifle the very protests taking place across this country and world.