Justice Department Supports Renewal of Patriot Act Provisions
By Joe Palazzolo | September 15, 2009 3:31 pm

The Obama administration has blessed three controversial provisions of the Patriot Act that expand the government’s reach in counter-terrorism investigations.

In a Sept. 14 letter to lawmakers, Assistant Attorney General Ron Weich said the Justice Department supports the use of roving wiretaps, the authority to access business records and the ability to track so-called “lone-wolf” terrorists, or those without visible ties to a foreign terrorist organization. The provisions sunset at the end of the year.

The Justice Department’s position was expected. During his confirmation hearings, Attorney General Eric Holder told members Congress he would review the provisions but said he would likely endorse their re-authorization.

“The tools that we have been given by Congress in FISA are important ones, so I would look at all three and make the determination of whether I would be able to support them,” Holder told member of the Senate Judiciary Committee. “I expect that I will.”

Weich said the administration is willing to consider changes that would increase privacy protections, as long as they preserve the effectiveness of the tools. Still, his letter embittered civil libertarians who have long opposed the measures.

“We are very encouraged to learn that the Obama administration has stated a willingness to discuss reforming the deeply flawed provisions in the Patriot Act, though we are disappointed at its support for the reauthorization of the three expiring provisions,” Michael Macleod-Ball, acting director of the ACLU’s Washington Legislative Office, said in a statement.

A refresher on the three provisions:

  • Lone wolf: Allows government to track a target without any discernible affiliation to a foreign power, such as an international terrorist group. The provision only applies only to non-U.S. persons. It has never been used in a FISA application.
  • Business records: Allows investigators to compel third parties, including financial services and travel and telephone companies, to provide them access to a suspect’s records without the suspect’s knowledge. From 2004 to 2007, the FISA court issued about 220 orders to produce business records.
  • Roving wiretaps: Allows the government to monitor phone lines or Internet accounts that a terrorism suspect may be using, whether or not others who are not suspects also regularly use them. The government must provide the FISA court with specific information showing the suspect is purposely switching means of communication to evade detection. The government has applied for roving wiretaps an average of 22 times a year since 2001.

The House and Senate Judiciary committees are scheduled to hold hearings on the provisions next week. Sen. Patrick Leahy (D-Vt.), the Senate Judiciary chairman, said in a statement today he was “pleased that the Justice Department has signaled its willingness to work with Congress” on the issue.

This post has been updated.

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