With A Whisper, Not A Bang
Bush Signs Parts Of Patriot Act II Into Law -- Stealthily

by David Martin, San Antonio Current, December 24, 2003

On December 13, when U.S. forces captured Saddam Hussein, President George W. Bush not only celebrated with his national security team, but also pulled out his pen and signed into law a bill that grants the FBI sweeping new powers. A White House spokesperson explained the curious timing of the signing - on a Saturday - as "the President signs bills seven days a week." But the last time Bush signed a bill into law on a Saturday happened more than a year ago - on a spending bill that the President needed to sign, to prevent shuttng down the federal government the following Monday.

By signing the bill on the day of Hussein's capture, Bush effectively consigned a dramatic expansion of the USA PATRIOT Act to a mere footnote. Consequently, while most Americans watched as Hussein was probed for head lice, few were aware that the FBI had just obtained the power to probe their financial records, even if the feds don't suspect their involvement in crime or terrorism.

The Bush Administration and its Congressional allies tucked away these new executive powers in the Intelligence Authorization Act for Fiscal Year 2004, a legislative behemoth that funds all the intelligence activities of the federal government. The Act included a simple, yet insidious, redefinition of "financial institution," which previously referred to banks, but now includes stockbrokers, car dealerships, casinos, credit card companies, insurance agencies, jewelers, airlines, the U.S. Post Office, and any other business "whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters."

Congress passed the legislation around Thanksgiving. Except for U.S. Representative Charlie Gonzalez, all San Antonio's House members voted for the act. The Senate passed it with a voice vote to avoid individual accountability. While broadening the definition of "financial institution," the Bush administration is ramping up provisions within the 2001 USA PATRIOT Act, which granted the FBI the authority to obtain client records from banks by merely requesting the records in a "National Security Letter." To get the records, the FBI doesn't have to appear before a judge, nor demonstrate "probable cause" - reason to believe that the targeted client is involved in criminal or terrorist activity. Moreover, the National Security Letters are attached with a gag order, preventing any financial institution from informing its clients that their records have been surrendered to the FBI. If a financial institution breaches the gag order, it faces criminal penalties. And finally, the FBI will no longer be required to report to Congress how often they have used the National Security Letters.

Supporters of expanding the USA PATRIOT Act claim that the new law is necessary to prevent future terrorist attacks on the U.S. The FBI needs these new powers to be "expeditious and efficient" in its response to these new threats. Robert Summers, professor of international law and director of the new Center for Terrorism Law at St. Mary's University, explains, "We don't go to war with the terrorists as we went to war with the Germans or the North Vietnamese. If we apply old methods of following the money, we will not be successful. We need to meet them on an even playing field to avoid another disaster."

Opponents of the USA PATRIOT Act and its expansion claim that safeguards like judicial oversight and the Fourth Amendment, which prohibits unreasonable search and seizure, are essential to prevent abuses of power. "There's a reason these protections were put into place," says Chip Berlet, senior analyst at Political Research Associates, and a historian of U.S. political repression. "It has been shown that if you give [these agencies] this power they will abuse it. For any investigative agency, once you tell them that they must make sure that they protect the country from subversives, it inevitably gets translated into a program to silence dissent."

Opponents claim the FBI already has all the tools to stop crime and terrorism. Moreover, explains Patrick Filyk, an attorney and vice president of the local chapter of the ACLU, "The only thing the act accomplishes is the removal of judicial oversight and the transfer of more power to law enforcements agents."

This broadening of the USA PATRIOT Act represents a political victory for the Bush Administration's stealth legislative strategy to increase executive power. Last February, shortly before Bush launched the war on Iraq, the Center for Public Integrity obtained a draft of a comprehensive expansion of the Patriot Act, nicknamed Patriot Act II, written by Attorney General John Ashcroft's staff. Again, the timing was suspicious; it appeared that the Bush Administration was waiting for the start of the Iraq war to introduce Patriot Act II, and then exploit the crisis to ram it through Congress with little public debate.

The leak and ensuing public backlash frustrated the Bush administration's strategy, so Ashcroft and Co. disassembled Patriot Act II, then reassembled its parts into other legislation. By attaching the redefinition of "financial institution" to an Intelligence Authorization Act, the Bush Administration and its Congressional allies avoided public hearings and floor debates for the expansion of the Patriot Act.

Even proponents of this expansion have expressed concern about these legislative tactics. "It's a problem that some of these riders that are added on may not receive the scrutiny that we would like to see," says St. Mary's Professor Robert Summers.

The Bush Administration has yet to answer pivotal questions about its latest constitutional coup: If these new executive powers are necessary to protect United States citizens, then why would the legislation not withstand the test of public debate? If the new act's provisions are in the public interest, why use stealth in ramming them through the legislative process?

Source: http://www.sacurrent.com/
site/news.cfm?newsid=10705756&BRD=2318&PAG=461
&dept_id=482778&rfi=6

Hon. Ron Paul Of Texas In The House Of Representatives

Thursday, November 20, 2003

Mr. Paul. Mr. Speaker, I rise with great concerns over the Intelligence Authorization Conference Report. I do not agree that Members of Congress should vote in favor of an authorization that most know almost nothing about--including the most basic issue of the level of funding.

What most concerns me about this conference report, though, is something that should outrage every single American citizen. I am referring to the stealth addition of language drastically expanding FBI powers to secretly and without court order snoop into the business and financial transactions of American citizens. These expanded internal police powers will enable the FBI to demand transaction records from businesses, including auto dealers, travel agents, pawnbrokers and more, without the approval or knowledge of a judge or grand jury. This was written into the bill at the 11th hour over the objections of members of the Senate Judiciary Committee, which would normally have jurisdiction over the FBI. The Judiciary Committee was frozen out of the process. It appears we are witnessing a stealth enactment of the enormously unpopular "Patriot II" legislation that was first leaked several months ago. Perhaps the national outcry when a draft of the Patriot II act was leaked has led its supporters to enact it one piece at a time in secret. Whatever the case, this is outrageous and unacceptable. I urge each of my colleagues to join me in rejecting this bill and its incredibly dangerous expansion of Federal police powers.

I also have concerns about the rest of the bill. One of the few things we do know about this final version is that we are authorizing even more than the president has requested for the intelligence community. The intelligence budget seems to grow every year, but we must ask what we are getting for our money. It is notoriously difficult to assess the successes of our intelligence apparatus, and perhaps it is unfair that we only hear about its failures and shortcomings. However, we cannot help but be concerned over several such failures in recent years. Despite the tens of billions we spend on these myriad intelligence agencies, it is impossible to ignore the failure of our federal intelligence community to detect and prevent the September 11 attacks. Additionally, it is becoming increasingly obvious that our intelligence community failed completely to accurately assess the nature of the

Iraqi threat. These are by any measure grave failures, costing us incalculably in human lives and treasure. Yet from what little we can know about this bill, the solution is to fund more of the same. I would hope that we might begin coming up with new approaches to our intelligence needs, perhaps returning to an emphasis on the proven value of human intelligence and expanded linguistic capabilities for our intelligence personnel.

I am also concerned that our scarce resources are again being squandered pursuing a failed drug war in Colombia, as this bill continues to fund our disastrous Colombia policy. Billions of dollars have been spent in Colombia to fight this drug war, yet more drugs than ever are being produced abroad and shipped into the United States--including a bumper crop of opium sent by our new allies in Afghanistan. Evidence in South America suggests that any decrease in Colombian production of drugs for the US market has only resulted in increased production in neighboring countries. As I have stated repeatedly, the solution to the drug problem lies not in attacking the producers abroad or in creating a militarized police state to go after the consumers at home, but rather in taking a close look at our seemingly insatiable desire for these substances. Until that issue is addressed we will continue wasting billions of dollars in a losing battle.

In conclusion, I strongly urge my colleagues to join me in rejecting this dangerous and expensive bill.

Source: http://www.fas.org/
irp/congress/2003_cr/h112203.html

Statement on H.R. 2417

Statement by the President

Today, I have signed into law H.R. 2417, the "Intelligence Authorization Act for Fiscal Year 2004." The Act authorizes funding for United States intelligence activities, including activities in the war against terrorists of global reach.

Section 506A(c) of the National Security Act of 1947, as enacted by section 312(b) of the Act, purports to require the President to request that the Congress enact laws appropriating funding for a major intelligence system procurement in an amount set as a cost estimate by an entity subordinate to the President or to explain why the President instead requests amounts below those levels. Moreover, beginning with the submittal to the Congress of the President's budget for FY 2006, section 312(d)(2) of H.R. 2417 purports to condition the obligation or expenditure of funds for development or procurement of a major intelligence system on the President's compliance with the requirements of section 506A. The executive branch shall construe these provisions in a manner consistent with the Constitution's commitment to the President of exclusive authority to submit for the consideration of the Congress such measures as the President judges necessary and expedient and to supervise the unitary executive branch, and to withhold information the disclosure of which could impair the deliberative processes of the Executive or the performance of the Executive's constitutional duties.

Section 341(b) purports to require the Attorney General and the Director of Central Intelligence, acting through particular offices subordinate to them respectively, to establish certain policies and procedures relating to espionage prosecutions. The executive branch shall implement this provision in a manner consistent with the authority committed exclusively to the President by the Constitution to faithfully execute the laws and to supervise the unitary executive branch. Similarly, sections 1102(a) and 1102(c) of the National Security Act, as enacted by section 341(a) of the Act, purport to mandate that the Director of Central Intelligence use or act through the Office of National Counterintelligence Executive to establish and implement an inspection process for all agencies and departments of the U.S. Government that handle classified information. The executive branch shall implement this provision in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.

The executive branch shall construe and implement section 376 of the Act, relating to making available classified information to courts, in a manner consistent with the President's constitutional authority to classify and control access to information bearing on the national security and consistent with the statutory authority of the Attorney General for the conduct of litigation for the United States.

Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall implement section 319 of the Act in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Fifth Amendment to the Constitution.

Section 502 purports to place restrictions on use of the U.S. Armed Forces and other personnel in certain operations. The executive branch shall construe the restrictions -in section 502 as advisory in nature, so that the provisions are consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

Section 106 enacts by reference certain requirements set forth in the joint explanatory statement of the House-Senate committee of conference or in a classified annex. The executive branch continues to discourage this practice of enacting secret laws and encourages instead appropriate non-binding uses of classified schedules of authorizations, classified annexes to committee reports, and joint statements of managers that accompany the final legislation.

GEORGE W. BUSH

THE WHITE HOUSE,

December 13, 2003.

Source: http://www.whitehouse.gov/
news/releases/2003/12/20031213-2.html

H.R. 2417
Intelligence Authorization Act for Fiscal Year 2004
As cleared by the Congress on November 21, 2003

H.R. 2417 would authorize appropriations for fiscal year 2004 for intelligence activities of the U.S. government, the Intelligence Community Management Account, and the Central Intelligence Agency Retirement and Disability System (CIARDS). The act also would make changes to other laws related to intelligence programs.

CBO was unable to obtain the necessary information to estimate the costs for the entire act because certain parts are classified. The unclassified portion of the act would affect direct spending and revenues; although CBO estimates these effects would be insignificant for each year.

Section 201 would authorize $226 million for CIARDS to cover retirement costs attributable to military service and various unfunded liabilities. The payment to CIARDS is considered mandatory, and the authorization under this act would be the same as assumed in the CBO baseline. Thus, this estimate does not ascribe any additional cost to that provision.

Section 315 would extend by one year the National Commission for Review of Research and Development Programs of the U.S. Intelligence Community to continue its review of the status of research and development programs and activities within the intelligence community and report on its findings. The provision also would extend the commission's authority to accept and spend gifts. CBO estimates that this provision would have no net budgetary effect because it would allow the commission to spend any gifts that it collects. (Gifts and donations are recorded in the budget as revenues.)

Section 504 would establish an advisory panel to review and make recommendations on measurement and signatures intelligence programs. Under this provision, the Director of the Defense Intelligence Agency would be allowed to accept contributions to defray the expenses of the advisory panel. CBO estimates any contributions received under this section would be insignificant.

CBO transmitted cost estimates for three previous versions of the Intelligence Authorization Act for Fiscal Year 2004. On June 16, 2003, CBO transmitted a cost estimate for the unclassified sections of H.R. 2417 as ordered reported by the House Permanent Select Committee on Intelligence on June 12, 2003. CBO also transmitted cost estimates for two versions of S. 1025 (an identically titled bill): the first on May 15, 2003, as reported by the Senate Select Committee on Intelligence on May 8, 2003; and the second on July 3, 2003, as reported by the Senate Committee on Armed Services on June 26, 2003. CBO estimated that all of these versions of the legislation would have insignificant effects on revenues and direct spending.

The CBO staff contact is Matthew Schmit. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

Source: http://www.cbo.gov/showdoc.cfm?index=4862&sequence=0

 


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