Patriot Act – 10 years of Invasion of Privacy and our Ignoring our Civil Liberties

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October 26, 2011

Ten years ago, on Oct. 26, 2001, President George W. Bush signed the USA Patriot Act.

Congress overwhelmingly passed the law only weeks after the Sept. 11 attacks. It’s designed to give the FBI more power to collect information in cases that involve national security.

But in the decade since then, civil liberties groups have raised concerns about whether the Patriot Act goes too far by scooping up too much data and violating people’s rights to privacy.

Nicholas Merrill is one of the people sounding an alarm.

The techie from New York may be one of the few people to fight a request for information from the FBI that came in the form of a tool called a national security letter. The Patriot Act made it easier for authorities to demand records from Internet service providers like Merrill’s company. But Merrill is the only person who’s gone to court to get a green light to talk about it, and he’s doing so.

It’s time to have an open discussion about the direction that our country’s going in, in terms of all this secrecy and justifying everything with national security.

– Nicholas Merrill

“I find it kind of upsetting that there’s still so much secrecy surrounding these powers and their actual use, even to this day,” Merrill says.

But even Merrill’s court victory has its limits, as NPR found out after asking him for details about the visit he got from an FBI agent back in the winter of 2004.

“Unfortunately I am not at liberty to talk about that, because that’s one of the things that’s still covered under the gag order that I’m under,” Merrill says.

That secrecy, according to lawyers at the American Civil Liberties Union, is just one of the problems with the Patriot Act.

Sneak And Peek

They’re bothered by another part of the law, the so-called sneak-and-peek provision. It lets FBI agents search a person’s home or business with a judge’s blessing, but without telling the person they’re doing it.

More On The Patriot Act

Senators: Justice Department Misleading Americans About Patriot Act Sept. 22, 2011

Patriot Act Extension Came Down To The Wire  May 27, 2011

 Obama’s Autopen ‘Signing’ Of Patriot Act Raises Eyebrows, Has Unlikely Ally  May 27, 2011

“We’re now finding from public reports that less than 1 percent of these sneak-and-peek searches are happening for terrorism investigations,” says Michelle Richardson, who works for the ACLU in Washington. “They’re instead being used primarily in drug cases, in immigration cases, and some fraud.”

What’s more, Richardson says the Justice Department doesn’t usually point to specific terrorism cases it built thanks to the Patriot Act, raising questions about whether the powerful law really works.

“I think a number of provisions have been very useful,” says Pat Rowan, who led the Justice Department’s national security unit during the Bush years. “But it’s not so much that they can be isolated and pointed to and said, ‘Oh, well this particular provision caused the government to discover a plot it otherwise wouldn’t have discovered.’ ”

Instead, Rowan says, the Patriot Act made investigations more efficient by giving investigators in national security cases many of the same tools they had in criminal cases — and by encouraging intelligence operatives and law enforcement agents to share information.

And Lisa Monaco, the assistant attorney general for national security, told NPR in a written statement that the ability of FBI and intelligence analysts to work together helped the country to move quickly in September 2009 to find a man trying to target the New York City subway system. That man, Najibullah Zazi, ultimately pleaded guilty last year in connection with the plot, Monaco said.

Congress and the country felt very comfortable with the basic work that we did.

– Viet Dinh

A Counterterrorism Symbol

Viet Dinh, the former Justice Department lawyer who wrote the Patriot Act, tells NPR that despite all the criticism from civil liberties groups, most people couldn’t tell you what’s in the law.

“There’s no question that the USA Patriot Act has become a brand, if you will, a symbol of all the counterterrorism activities after 9/11,” Dinh says.

Dinh says the law simply gave the FBI more flexibility to do its job — and he points out that Congress has reauthorized provisions in the law with only small changes several times in the past 10 years.

One of the tweaks lawmakers made was allowing people like Merrill to talk to a lawyer for advice about receiving a national security letter.

In the years that followed the Sept. 11 attacks, the Justice Department’s inspector general went on to study the FBI’s use of national security letters, reporting that agents had demanded information without following internal procedures, and in some cases, in violation of the law. The FBI blamed the mistakes on poor record-keeping and insufficient oversight.

Dinh says that there have been “troubling instances of their misapplication and misuse” by the FBI. But he says it’s clear that “Congress and the country felt very comfortable with the basic work that we did” in the Patriot Act.

Bigger Surveillance Efforts?

Richardson, at the ACLU, says she hasn’t given up on efforts to get lawmakers to scrap some parts of the Patriot Act. But she’s got her eye on even bigger surveillance efforts in the works now.

“The White House’s cybersecurity proposal right now makes the Patriot Act look quaint,” Richardson says. “And really, the collection that it would allow would really outpace anything that’s probably being done under the Patriot Act.”

Merrill, who wasn’t able to talk to his family for years about the FBI request or his lawsuit, still wonders how many other people have gone through a similar experience. Two Democratic senators, Ron Wyden of Oregon and Mark Udall of Colorado, have been demanding this year that the Justice Department go public with a classified interpretation of one part of the Patriot Act that they say would surprise and anger the public.

“It’s time to have an open discussion about the direction that our country’s going in, in terms of all this secrecy and justifying everything with national security,” Merrill says.

That’s a conversation that Merrill hopes to jump-start Wednesday — on the Patriot Act’s 10th anniversary.

Counting Costs in Criminal Justice

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A new report suggests that looking for ways to save money throughout our justice system could actually lead to improved outcomes.

According to “Balanced Justice” a report released Wednesday by the Institute for Policy Integrity and the Center for Administration of Criminal Law, when policy makers use cost-benefit analysis in determining the effectiveness of criminal justice programs, best practices often rise to the top.

 

http://www.thecrimereport.org/news/inside-criminal-justice/2011-10-counting-costs-in-criminal-justice

Henry James freed after 30 years

by:  Innocence Project

On October 21st, our client Henry James  walked out of the
Louisiana State Penitentiary in Angola a free man for the first time in three
decades. DNA tests prove his innocence of a 1981 rape, and last night a judge
overturned his conviction.

Right now, he is on his way to New Orleans to greet supporters and talk with the media about the injustice he suffered and his plan to build a life at age 50, after
losing 30 years in prison for a crime he did not commit.

James was arrested and charged with rape in 1981 after the victim misidentified him as the perpetrator. His conviction was based on faulty evidence, and it
took the miraculous discovery of missing evidence to clear him. Blood type
tests pointed to his innocence, but his defense attorney failed to share those
results with the jury.

The Innocence Project accepted James’ case in 2005, but several searches for
evidence proved fruitless. Then, in May 2010, James had an incredible stroke of
luck. That day, a lab worker named Milton Dureau was looking for evidence in a
different case when he stumbled upon a slide from James’ case. Fortunately, he
remembered James’ case number from his earlier search. The evidence was sent to a lab, where DNA testing proved James’ innocence.

James will now begin the long process of building a new life after so many years lost to wrongful incarceration. Send him a note of support today to welcome him home.

James’ legal team includes the Innocence Project, our partners at the Innocence Project New Orleans and Willkie Farr & Gallagher LLP.

Best,

The Innocence Project Team

NY Times Editorial Assails Mandatory Minimum Sentencing Laws

October 1, 2011 by Federal Criminal Paralegal

Today’s New York Times has this effective editorial criticizing mandatory minimum sentencing provisions headlined “An Invitation to Overreach.” Here are excerpts:

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost. These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system’s attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems. As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities…. These laws have helped fill prisons without increasing public safety. In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

“This state locks too many people up for too long”

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A brief but compelling editorial from The Gainesville Sun responded to the AP article and pinpointed Florida’s main problem:  “This state locks too many people up for too long.”  Here’s the Sun‘s editorial response, in its entirety:

Editorial:  “The Wrong Reform”

If Gov. Rick Scott and Florida legislative leaders would get over their obsession with privatizing prisons, perhaps they might focus on the real cause of Florida’s runaway corrections spending.

This state locks too many people up for too long.

A succession of “get tough on crime” mandatory minimum sentencing laws are primarily responsible for a state incarceration rate that is 26 percent higher than the national average.

An Associated Press report this weekend cited the case of a man serving a mandatory five-year prison sentence for possession of a handful of Lortab tablets, “prescription-only pills containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers.”

“Florida’s prison system, which now has about 102,000 inmates, grew more than 11-fold from 1970 through 2009 while the state’s population increased just under three times,” the AP reported. “Florida also has done away with parole and requires inmates to serve a minimum of 85 percent of their sentences, which have kept inmates behind bars longer.”

Thus, Florida’s corrections spending continues to escalate even as crime rates decline.

Citing data from “Right on Crime,” a prison reform group that advocates doing away with mandatory minimum sentences and relying more on drug courts and substance abuse treatment for offenders, the AP report continued, “If Florida imprisoned people at the same rate it did in 1972-73 the state would have only 23,848 inmates and be spending $446 million a year on prisons instead of $2.4 billion.”

Privatizing prisons simply injects a profit motive into what Alison DeFoor, vice chair of the Center for Smart Justice, in Tallahassee, already calls Florida’s “prison-industrial complex.”

Real corrections reform would involve locking fewer people up, not creating new profit opportunities for the private sector at taxpayers’ expense.