In little more than a month, three of the 160 provisions of the notorious Patriot Act are set to expire. While federal officials have claimed that Congress must reauthorize those provisions to keep the nation safe, we should take their claims with a grain of proverbial salt. Last month, FBI Director Robert Mueller urged Congress to extend these provisions, set to expire May 27, and even to make them permanent. Section 215 authorizes secret court orders for business records. The “Lone Wolf” wiretapping provision allows the government to track non-U.S. citizens inside the country even if they have no affiliation to a foreign power or terrorist group. Finally, the “John Doe” roving wiretap provision allows open-ended wiretapping orders limited neither to a particular suspect nor particular phones or devices.
Mr. Mueller warned ominously that without these powers, law enforcement and counterterror investigations would be severely undermined, adding, predictably, that they are “critical to national security.”
But his words have an all too familiar - and hollow - ring.
Nine years ago, before Coleen Rowley (co-author of this article) retired from a 24-year career as an FBI special agent, she wrote to Mr. Mueller to point out some of the bureau’s failures prior to the Sept. 11, 2001, attacks. A disturbing lack of accountability had followed the attacks with the director and other officials falsely suggesting that U.S. intelligence agencies lacked advance knowledge of the attacks. That wasn’t so. Numerous pieces of intelligence data had poured in during that summer of 2001, including prior warnings from my colleagues in the Minneapolis field office related to Zacarias Moussaoui. Moussaoui would later be convicted for his role in the Sept. 11 plot.
It’s been my experience that political or bureaucratic fear-mongering and “security theater” have all too often trumped effective investigation and intelligence. Over the decade since the Patriot Act was first enacted, a large - and increasing - number of American citizens have also learned that lesson the hard way.
Politicians and federal authorities relentlessly insist that secret and unchecked government power equal greater security. That formula, however, is not only inaccurate, but also dangerous both to our liberty and security.
While Mr. Mueller and other Patriot Act supporters - in both parties - clamor for reauthorization of expiring provisions, Congress should instead consider the Justice Act, which would curtail most of the documented abuses under Patriot and restore much-needed limits on executive power.
Under the aegis of the Patriot Act’s expansion of material-support prosecutions, for instance, charities have been shut down without due process, even when pursuing projects as laudable as promoting nonviolent conflict resolution in war-torn areas. Grassroots donors have been imprisoned because the ostensibly humanitarian organizations to which they contributed got connected to activities those donors never intended to support. The Justice Act would end these abuses by requiring prosecutors to prove a defendant’s intent to support violence.
Erosion of prior attorney general guidelines allow the FBI and its joint terrorism task-force officers to use the most intrusive investigative techniques - such as planting undercover agents provocateur in mosques and peace groups to instigate violent plots - without any evidence or even suspicion of wrongdoing. Coupled with the expansion of what’s considered “material support,” these powers have enabled abuses by encouraging agents to check off statistical achievements rather than seeking real security.
Last fall’s FBI raids of peace activists across Minneapolis and Chicago illustrate how this waste and abuse can involve hundreds of agents. Additionally, in the Iowa heartland before the 2008 Republican National Convention, the FBI filled hundreds of pages about a few student protesters in Iowa City using costly surveillance, trash searches and work with terrorism databases and statistical analysis - all without ever demonstrating the slightest justification or suspicion.
Despite Mr. Mueller’s claims, none of this domestic surveillance has made Americans any safer. Indeed, the massive data collection that has sprung up only adds largely irrelevant hay to the haystack, making it even harder to detect meaningful patterns and anticipate events. In contrast, the Justice Act would curtail bulk intelligence collection, ensuring that agents focus on real threats, rather than spying on innocent Americans.
Our nation will soon debate on whether to extend - or, worse yet, permanently enshrine - the dangerous excesses of the Patriot Act. Rather than take its marching orders from the executive branch, Congress should stop ongoing abuses and restore checks and balances on executive power.
A wide-ranging congressional investigation of the sort conducted by the Church Committee is long overdue. And while Congress musters the will to do its job, it should consider the Justice Act as an alternative to Patriot reauthorization.
Coleen Rowley was an FBI special agent for almost 24 years. She worked as legal counsel to the FBI Field Office in Minneapolis from 1990 to 2003. Philip Leggiere is a journalist whose work has appeared in WIRED and Salon.