THE SLIMY HAND: Zombie Patriot Act Will Keep U.S. Spying—Even if the Original DiesPosted: June 1, 2015
Forget the White House’s doomsday talk about American intelligence going blind. Thanks to backdoor provisions and alternate collection schemes, U.S. spies will keep on snooping.
“I don’t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we’re dark, and heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity.”
— President Obama, to reporters on Friday
That argument is highly debatable—at least, in the short term. Not only does the U.S. government have all sorts of other ways to collect the same kind of intelligence outlined in the Patriot Act, but there’s also a little-noticed back door in the act that allows U.S. spy agencies to gather information in pretty much the same ways they did before.
“It does seem to me at least reckless to not allow at least a temporary continuation of the bill while we have this debate. But that’s not the way it’s working, and unfortunately I think it’s part of the presidential campaign, and I think people have to judge it for themselves.”
— Sen. John Cornyn (R-TX)
In other words, there’s a zombie Patriot Act—one that lives on, though the existing version is dead.
On Sunday night, senators voted overwhelmingly to end debate on a measure passed in the House, the USA Freedom Act, which will leave most surveillance authorities in the Patriot Act intact. But some of those powers won’t expire at least until Tuesday and possibly Wednesday. Administration officials had warned that even a momentary interruption posed a grave risk.
“I don’t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we’re dark, and heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity,” Obama told reporters at the White House on Friday. On Sunday, CIA Director John Brennan said on CBS’s Face the Nation that there’d “been a little too much political grandstanding and crusading for ideological causes that have skewed the debate on this issue,” an apparent reference to Sen. Rand Paul, a Republican presidential candidate, and his promise to force the law to expire, “but these tools are important to American lives.”
They may be. But they are far from the only tools in the counterterrorism arsenal, and though they are no longer law as of Monday, the United States still has plenty of authority to collect intelligence on jihadis and foreign spies.
For starters, there will be what’s left of the Patriot Act itself. One former U.S. intelligence official told The Daily Beast that Section 214 of the law, which allows “pen register/trap & trace,” could be used to collect phone and even email records. That would not only cover the gap from the expiring NSA program that collects the phone records of Americans’ landline calls, but potentially expand the government’s collection. (No wonder the NSA largely views the bill that would reform the Patriot Act as a major win.)
That former official and another both noted that there are other tools, including under different laws than the Patriot Act, for obtaining “roving wiretaps,” which allow the government to monitor one person’s multiple communications devices….(read more)
—Alexa Corse and Tim Mak contributed reporting.
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