Foundation for enabling Patriot Act started with Clinton and Democrats, not Bush 43

Bill Clinton

Photo of Bill Clinton: Democrats’ national convention in Denver; Aug. 25-28, 2008. US Library of Congress; Carol M. Highsmith.

In June, 2013 I first wrote about how President Bill Clinton laid the groundwork for data mining crucial to implementation of the Patriot Act.
Clinton put the foundation in place in 1994.

Democrats concurred—they held both the U.S. Senate and the U.S. House of Representatives.

As a matter of fact, Democrats in Congress shoulder the majority of responsibility for spying powers under three presidents.

Are you shocked? Read on.

By May, 2011, when President Barack Obama signed the Patriot Act reauthorization, spying and secrecy had increased even over levels practiced by the administration of President George W. Bush. At that time, Democrats held the Senate and Republicans had control of the U.S. House.

CALEA, 1994

Although in 1994 public use of the Web was still in its toddler phase, Clinton and Democrats in control of both the Senate and the House passed the Communications Assistance for Law Enforcement Act (CALEA).

Cisco, one of the major players in production for the architecture of the Web, placed a statement on the corporate website, and that site still has extensive information about CALEA posted:

“Increasingly, legislation is being adopted and regulations are being enforced that require service providers (SPs) and Internet service providers (ISPs) to implement their networks to explicitly support authorized electronic surveillance.”

The Guardian, the paper that actually gave legs to coverage of the current controversy about snooping, explained the complexities:

“First, lots of data bound for those companies passes over what are called ‘content delivery networks’ (CDNs), which are in effect the backbone of the internet. Companies such as Cisco provide ‘routers’ which direct that traffic. And those can be tapped directly, explains Paolo Vecchi of Omnis Systems, based in Falmer, near Brighton…’The Communications Assistance for Law Enforcement Act (Calea) passed in 1994 forces all US manufacturers to produce equipment compliant with that law,’ says Vecchi. ‘And guess what: Cisco is one of the companies that developed and maintains that architecture.’ Cisco’s own documents explain its Calea compliance.”

PATRIOT ACT, 2001

After the Sept. 11, 2001 attacks on the U.S., President George W. Bush signed the Patriot Act. Republicans held the House; Democrats held the Senate. There was overwhelming bipartisan support for the bill.

The Patriot Act impacted a number of U.S. laws on surveillance, including the Foreign Intelligence Surveillance Act and laws on money laundering—and the public largely accepted it because the country was still reeling from the 9/11/2001 attacks. Civil libertarians raised vocal concerns and many Democrats eventually joined in, but the Act stood as it stands today.

Eventually, as Reason magazine pointed out, criticism of the act came from two unlikely allies—tea party Republicans and liberal Democrats.

Obama signed the reauthorization of the Act even though he repeatedly criticized Bush 43 for it during the presidential campaign season of 2008. Reason sums up Obama’s flip flop [underscore added]:

“Barack Obama had promised ‘no more illegal wiretapping of American citizens.’ So, problem solved.

Except it wasn’t. In fact, it got worse.

First the Obama administration defended warrantless wiretapping on state-secrets grounds. Now the ACLU has released a trove of Justice Department records showing – in the ACLU’s words – a ‘huge increase in warrantless electronic surveillance’ from 2009 to 2011. The documents show an explosion in the use of ‘pen register’ and ‘trap and trace’ surveillance. Those forms of spying record information such as who is calling (or emailing) whom and for how long, but not the content of the conversation.”

The Law Librarian Blog used an analysis from the American Civil Liberties Union to explain the most controversial aspects of the law—the latest version of it signed by Obama in May, 2011:

─Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.

─Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.

─Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called “Lone Wolf” provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.

The Guardian story noted CALEA’s progression and multiplication of corporations snared, beginning with Bush’s tenure at a time when Democrats had majorities in both the House and the Senate:

“Microsoft was the first to be included, in September 2007. Yahoo followed in March 2008, Google in January 2009, Facebook in June 2009, Paltalk, a Windows- and mobile-based chat program, in December 2009, YouTube in September 2010, Skype in February 2011 (before its acquisition by Microsoft), AOL in March 2011 and finally Apple in October 2012.”

DOMESTIC SPYING, SECRECY

Courtesy of Mother Jones, a publication sympathetic to the left, Americans learned that Obama’s Dept. of Justice fought the release of a legal opinion about domestic spying:

“[T]he Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.”

The Washington Independent covered controversy over government spy policy in 2009 shortly after Obama took office. One of Obama’s primary messages to voters involved the legality of such spying; he was harshly critical of it. The Independent said [underscore added]:

“In 2007 and 2008, as the Democratic-led Congress and the Bush administration collaborated in rewriting several elements of the Foreign Intelligence Surveillance Act, civil libertarians in and outside of Congress warned that the changes would institutionalize wide-ranging surveillance by the National Security Agency on U.S. citizens.”

IS THE WAR ON TERROR OVER?

What makes Obama’s flip flop and his expansions more troubling is that the president repeatedly leads Americans to believe there is no global war on terror. If that is the case, why is government spying at an all-time high?

The secrecy the Obama administration practices gives credence to Edward Snowden’s claims that no one would listen to him when he raised concerns with government officials about the spying.

Months before the heated November, 2012, presidential election, a White House staffer told National Journal, “The War on Terror is over.”

Obviously, the White House doesn’t believe what it told us.

Although activists on social media routinely blame Bush 43 for all facets of spying, the fact is the groundwork was laid by Clinton before the Patriot Act became law.

Obama utilized all aspects of the Patriot Act, taking spying to new levels, and he also signed its reauthorization.

All three presidents hold responsibility for both the act and its application over the years.

Ironically, the lion’s share of responsibility for spying when it comes to actions by Congress  goes to Democrats.

Sources

The Law Librarian Blog: Law Professors.typepad.com: Patriot Sunset Extension Act of 2011 signed into law; May, 2011. [Link via Internet Archives/Wayback]
http://web.archive.org/web/20110603093822/http://lawprofessors.typepad.com/law_librarian_blog/2011/05/patriot-sunset-extension-act-of-2011-signed-into-law-.html

Mother Jones: Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance; June 7, 2013.
http://www.motherjones.com/politics/2013/06/justice-department-electronic-frontier-foundation-fisa-court-opinion

Wikipedia: History of the Patriot Act. [Majority of citations are credible.]
http://en.wikipedia.org/wiki/History_of_the_Patriot_Act

Photo of Bill Clinton: Democrats’ national convention in Denver; Aug. 25-28, 2008. US Library of Congress; Carol M. Highsmith.

(Analysis by Kay B. Day/May 29, 2014)

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About Kay Day

Kay B. Day is a freelance writer who has published in national and international magazines and websites. The author of 3 books, her work is anthologized in textbooks and collections. She has won awards for poetry, nonfiction and fiction. Day is a member of the American Society of Journalists and Authors and the Authors Guild.

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