03/18/2010 05:12 am ET | Updated May 25, 2011

Obama Versus Obama on the Patriot Act

Yesterday, the Senate Judiciary Committee voted to
reauthorize three expiring provisions in the USA PATRIOT Act. While the bill
they passed strengthened civil liberties in several small ways, the Committee
failed to make any meaningful improvements to the Patriot provisions that are
most prone to abuse. Disturbingly, Obama Administration officials played a
significant behind the scene role in opposing stronger civil liberties
protections, directly contradicting Obama’s positions as a Senator.

Two of
the most problematic surveillance powers the Patriot Act grants law enforcement
are 1) National Security Letters (NSLs) and 2) Section 215 orders. As a
Senator, Obama supported reforming both sets of powers “to protect the freedoms of
innocent Americans while also ensuring that the government has the power it
needs to investigate potential terrorists.” Senator Obama supported
these protections through the SAFE Act, which he co-sponsored in the 109th
Congress, and also in a signed 2005 letter to his Senate colleagues.

Under the Patriot Act, FBI agents may issue NSLs to obtain
comprehensive financial and communications records about anyone, including
people suspected of no wrongdoing and no connection to terrorists or foreign
powers. To do this, the FBI merely needs to claim the information is relevant
to an investigation. Anyone receiving one of these orders is prohibited by law
from speaking about it to anyone else, except their attorney. The FBI issues
tens of thousands
of NSLs each year, most of them directed at U.S. citizens and
lawful permanent residents.

As a Senator, Obama favored raising the standard for issuing
an NSL to require a link between the records sought and a terrorist, spy, or other
agent of a foreign power. Yet the Obama Administration opposed an even
weaker standard – one that would require that the government draft an internal
statement of "specific and articulable facts" showing that the
information sought was somehow relevant to an investigation.  Instead, according
to the deliberations of the Judiciary Committee, the Administration favored a
mere relevance standard.

Section 215 works in a similar manner to NSLs, enabling the
FBI to require anyone to produce "tangible things"—such as business
records—relevant to an investigation to protect against international
terrorism. As Senator, Obama supported an amendment to raise the standard for
issuing a Section 215 order to require a link between the records sought and a
terrorist, spy, or other agent of a foreign power. The Obama Administration
opposed this very change to the Patriot Act, dooming its prospects in the
Senate Judiciary Committee.

These expansive powers have already been abused. The Justice
Department's own Inspector General (IG) issued two reports on the use of NSLs
from 2003 to 2006. The IG found that the FBI issued NSLs when it had not even
opened an investigation, and that the FBI retained information obtained through
NSLs almost indefinitely, even when the person is not suspected of any crime.
Often the information obtained with an NSL is made widely available to
thousands of people in law enforcement and intelligence agencies.

So what happened? Why did President Obama about-face on the
very civil liberties protections he supported a few short years ago as a
Senator? Has the President now determined that the contraction of American
civil liberties is outweighed by the political risk of something happening on
his watch?  With Democrats in
charge of Congress and strong civil libertarians at the helm of the House and
Senate Judiciary Committees, the time for Patriot Act reform is now. But with
the Administration pushing in the wrong direction, the chances for reform have
been diminished.  Now it's up to
the House Judiciary Committee to stand its ground.  The opportunity for real reform will not come again anytime
soon. Congress needs to do the right thing, even if Obama will not.