Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
In 2001, the Patriot Act was passed and it gave the government the authority to do a search without ever talking to a judge or getting a warrant, just by issuing a "National Security Letter." And when they issued it, the recipient had to comply and they could not inform the subject of the search that they had been searched.
In 2006, we found out that throughout 2004 and 2005 the FBI had abused the procedure hundreds of times, but they assured us that the situation had been fixed. And in 2008, we found out that the abuse had continued throughout 2006. But don't worry, because they really did have it fixed that time and it wouldn't be happening anymore.
Now in 2009, the government admits that the NSLs, which were intended only to apply to terrorism investigations, were not used for terrorism more than 99% of the time in 2008.
Only three of the 763 "sneak-and-peek" requests in fiscal year 2008 involved terrorism cases, according to a July 2009 report from the Administrative Office of the U.S. Courts. Sixty-five percent were drug cases.
But don't worry. This time they aren't even pretending that the problem has been fixed because this is all just fine:
Sen. Russ Feingold (D-Wis.) quizzed Assistant Attorney General David Kris about the discrepancy at a hearing on the PATRIOT Act Wednesday. One might expect Kris to argue that there is a connection between drug trafficking and terrorism or that the administration is otherwise justified to use the authority by virtue of some other connection to terrorism.He didn't even try. "This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence. It's for criminal cases. So I guess it's not surprising to me that it applies in drug cases," Kris said.
"As I recall it was in something called the USA PATRIOT Act," Feingold quipped, "which was passed in a rush after an attack on 9/11 that had to do with terrorism it didn't have to do with regular, run-of-the-mill criminal cases. Let me tell you why I'm concerned about these numbers: That's not how this was sold to the American people. It was sold as stated on DoJ's website in 2005 as being necessary - quote - to conduct investigations without tipping off terrorists."
Kris responded by saying that some courts had already granted the Justice Department authority to conduct sneak-and-peeks. But Feingold countered that the PATRIOT Act codified and expanded that authority -- all under the guise of the war on terror.
Feingold, the lone vote against the PATRIOT Act when it was first passed, is introducing an amendment to curb its reach. "I'm going to say it's quite extraordinary to grant government agents the statutory authority to secretly break into Americans homes," he said.
Feingold is the only consistent voice in the Senate against this kind of abuse.
Politics
Comments
Russ Feingold is a hero. Does he have any support for the reining in legislation? At least the DOJ has stopped lying about fixing the problem. Of course saying there IS no problem is an even more troubling aspect of this affair. I obviously do NOT remember this correctly, but didn't some form of the mis-named Patriot Act have a sunset clause?
Posted by: MikeMa | September 29, 2009 10:17 AM
Yes, and some provisions are about to sunset. That's why they're now considering reauthorization legislation.
Posted by: Ed Brayton | September 29, 2009 10:29 AM
Thanks Ed. Glad my memory isn't shot completely. Found this link to Feingold's words on the re-authorization and his concerns: bloggingblue
Posted by: MikeMa | September 29, 2009 10:43 AM
But you forget that most Americans don't care about or want civil liberties protections. Too many people are convinced that only "bad guys" are the ones picked up by cops, and if they're using the USA PATRIOT Act to put drug dealers away, then that's a good thing. I hope I'm wrong, but my guess is that the USA PATRIOT Act will be reauthorized.
Posted by: Shawn Smith | September 29, 2009 11:17 AM
I fear Shawm Smith is probably correct. Those same 'conservatives' who scream and throw a hissy fit at the thought of 'big government' providing an alternative healthcare plan are the same ones who have no problem extending that same government (they supposedly mistrust) with the ability to warrantless wiretap, etc.
Posted by: FastLane | September 29, 2009 11:24 AM
Shawn's observation at 4 is a good one. VP Cheney was particularly effective at defending the feds violating our rights with his, "We not interested in what your Aunt Sadie is discussing over the phone with her sister in Paris" [paraphrased].
I think Christopher Hitchens made the best argument on why this is harmful to all Americans; where he claimed all the legwork he and other journalists did in the Middle East to develop sources subsequently began to refuse to provide intelligence when they got back to the States after it became known the feds were bugging pretty much all international communications. The net effect was the quality and volume of our understanding of events provided by the media was seriously compromised by the Patriot Act and the Bush Administration going beyond even the Patriot Act's limitations.
The problem is that the argument Cheney made appears to me to be the only argument or self-rationalization most people have; it's rare to find counter arguments in the public square or consciousness like Hitchen's. It's just one more example of the media being both lazy and stupid given that they don't pervasively report why these policies are harmful.
Keith Olbermann in particular meets my ire on this topic, he continually claims the moral high ground on this subject while not providing any meat justifying his claim for taking said high ground like Hitchen's does.
Posted by: Michael Heath | September 29, 2009 11:43 AM
I am so glad I live in Wisconsin and get to elect him. :>
Posted by: Arrow Quivershaft | September 29, 2009 11:49 AM
The good news: terrorists were likely never tipped off about the drug investigations. The bad news: thanks to your meddling, now they are!
Posted by: pough | September 29, 2009 11:58 AM
Since we're on Russ Feingold slobberfest . . .
Sen. Feingold distinguishes himself on the Senate Judiciary Committee during judicial nomination hearings. Rather than using his allotted time to bloviate like many (most?) Senate Committee members, he actually attempts to ask probing questions to better understand a nominee's positions and interpretative techniques. He's equally tough on Democratic nominees as he is with Republican nominees.
If all Senators followed his example, no Supreme Court nominations would get advanced to the floor without our at least hearing direct answers from the nominees. Sen. Feingold fails on this matter as well only because most of his peers fail to follow his example; thereby enabling nominees to obfuscate.
Posted by: Michael Heath | September 29, 2009 1:05 PM
Warrantless National Security Letter searches are a separate issue from the sneak and peek warrants being discussed here.
Five appellate cases, decided between 1986 and 1993 by the Second and Ninth Circuits determined that the requirements of Rule 41 of the Federal Rules of Criminal Procedure (under which officers serving a search warrant are required to deliver to the occupants, or leave on the premises, a copy of the warrant and a receipt for articles seized) could be suspended by the court provided that the warrant specified that no tangible evidence be seized. Notification could then be delayed until the delivery of a conventional warrant on a later date authorizing seizure of tangible evidence.
Section 213 of the USA PATRIOT act provided express statutory authorization of these "sneak and peek" warrants, replacing what had simply been a judicial precedent with actual legislation. These are still searches based on an actual warrant however, approved by a judge, and not the warrantless NSLs mentioned above.
Section 213 of the PATRIOT act is one of the sections which is NOT covered by the sunset provision.
Posted by: Jonathan | September 29, 2009 2:38 PM
Congress could pass a law stating that the DOJ could strip search every American whenever they feel like it but there is this thing called the Constitution that makes those searches illegal and anything gained from them inadmissible in a court of law. I assume that the Constitution still has some meaning to some judge somewhere.
Posted by: Tilting At Windmills | September 29, 2009 5:46 PM
Michael Heath:
Sen. Feingold distinguishes himself on the Senate Judiciary Committee during judicial nomination hearings. Rather than using his allotted time to bloviate like many (most?) Senate Committee members, he actually attempts to ask probing questions to better understand a nominee's positions and interpretative techniques. He's equally tough on Democratic nominees as he is with Republican nominees.
I remember hearing Feingold during the Roberts and Alito hearings on NPR and got the feeling that he was practically the only Judiciary Committee member who (A) was willing to ask entirely relevant questions a nominee wouldn't necessarily like and (B) would absolutely scare the shit out of me if I was a nominee for that reason. You really don't get much - if anything - past the guy.
Posted by: Chris Krolczyk | September 29, 2009 8:11 PM
Isn't it funny how right as portions of the patriot act are about to expire that there are suddenly a bunch of terrorism arrests? I wonder how many of those sneak and peek warrants were from investigations that started from the warrantless wiretaps? Easy enough for the DOJ to get an informant to lie so they can get a judge to sign off on one.
Posted by: cthulhu's minion | September 29, 2009 10:33 PM
Tilting- "I assume that the Constitution still has some meaning to some judge somewhere."
From the looks of things.....[citation needed].
The fact that I'm only half-joking makes me incredibly sad.
Posted by: Rick R | September 29, 2009 11:07 PM
Yes, I have a certain amount of respect for Feingold, despite disagreeing with some of his views. He also deserves credit for working with John McCain on the McCain-Feingold campaign finance reform bill a few years back. It takes some courage, when one is part of an institution whose members benefit massively from private campaign donations and lobbying, to speak out against the influence of special interests.
Posted by: Walton | September 30, 2009 5:45 AM