October 26, 2011
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
“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.
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.