Same Neck, Different Boot

The legal authority for U.S. spy agencies collection of phone records and other data expired after the Senate failed to pass legislation extending the powers. The Senate voted 77-17 to move ahead on a House-passed bill, the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act,” (USA FREEDOM Act) which fell three votes short of the 60 needed to advance in the Senate.

In addition to the bulk phone collections provision, two lesser-known PATRIOT Act provisions also lapsed: one helps track “lone wolf” terrorism suspects unconnected to a foreign power; the second allows the government to eavesdrop on suspects who continually discard their cell phones.

But that program and several other post-Sept. 11 counter-terror measures look likely to be revived in a matter of days. Rebooting the phone collections program would take about a day.

With no other options, Senate Majority Leader Mitch McConnell is embracing a House-passed bill that would extend the anti-terror provisions, while also remaking the bulk phone collections program. The FBI’s use of the PATRIOT Act to collect hotel, travel, credit card, banking and other business records in national security investigations would also be extended under the House bill.

The House bill extends those two provisions unchanged, while remaking the bulk collection program so that the National Security Agency (NSA) would stop collecting the phone records after a six month transition period, but would be authorized under court order to search records held by phone companies.

After debate pitting Americans’ distrust of intrusive government against fears of terrorist attacks, the Senate voted to move ahead with reform legislation that would replace the bulk phone records program revealed two years ago by former NSA contractor Edward Snowden. It’s being considered a victory by President Obama, who pushed hard for Congress to advance the reform measure.

Under the USA FREEDOM Act telephone records would be held by telecommunications companies, not the government, and the NSA would have to get court approval to gain access to specific data. Neither the current or proposed new system supposedly gives the federal government access to the content of phone conversations.

However, collecting massive amounts of data isn’t what halts terror attacks. It’s the ability of agencies to communicate with one another.

From 1998 to 2001, the Army Intelligence and Special Operations Command (AISOC) conducted an intelligence-gathering endeavor known as Able Danger. Its mission was to investigate the terrorist threat posed by al Qaeda, both inside the U.S. and abroad.

Able Danger identified, by name, four of the future 9/11 hijackers — including the ringleader, Mohammed Atta – as members of an al Qaeda cell based in Brooklyn, New York. But the AISOC couldn’t inform the FBI about the activities of these suspects, leaving them free to continue plotting and preparing for the 9/11 attacks.

That’s because, under the Clinton administration, a policy preventing the agencies from sharing intelligence was enacted. In fact, Clinton deputy attorney general Jamie Gorelick is responsible for creating this “wall” that restricted information sharing between intelligence and law enforcement agencies before the attacks.

Unfortunately, in protecting Clinton’s legacy, many Progressives point to the same style of “wall” blocking communications, going back to the Carter administration’s 1978 Foreign Intelligence Surveillance Act, which was enacted to defuse allegations of FBI espionage abuses.

However, Gorelick penned her memo when the FBI and CIA were investigating illegal Chinese contributions that had been made to Clinton’s presidential campaign. Both agencies were finding evidence damaging to the Democratic Party, its fundraisers, the Chinese, and ultimately the Clinton administration itself.

Communications between federal agencies is obviously working now, though the means remain unclear to justify the ends.

A good example is the current situation in which former House speaker Denny Hastert finds himself. He’s now indicted for violating regulations on bank withdrawals originally meant to snare drug dealers.

Setting aside anything else Hastert may have done, which is all speculation at this time, he allegedly began by withdrawing $50,000 at a time, but when the activity was questioned by banking officials, he reduced the withdrawals to under $10,000. This caught the attention of financial regulators, who suspected Hastert was trying to evade federal reporting requirements.

Claiming they were concerned Hastert might be the victim of criminal extortion the FBI asked the former speaker about the withdrawals. He claimed that he distrusted banks and still had the cash in his possession, according to the indictment.

All this aside and while parts of the PATRIOT Act are dying, American surveillance will live on.

Section 214 of the PATRIOT Act allows for “pen register/trap and trace,” which will still be used to collect phone and email records. This not only covers the supposed gap in the NSA program but could even expand the government’s current collection program.

And now you know why Obama see’s this so-called ‘lapse’ as a major ‘win.’

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About Tom Darby

French-born, American-raised, U.S. citizen, husband, father, friend, veteran, and writer.
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