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From WarBlogger:
November 26, 2003
Key Component of VICTORY Act Passed
In August Warblogging wrote about the VICTORY Act, which was basically a redraft of the Domestic Security Enhancement Act of 2003. Both potential laws had been passed around by John Ashcroft's Department of Justice to members of Congress.
The key provision of the VICTORY Act, the one to which I objected most, was an expansion of the power of the FBI to attain financial records without ever talking to a judge, without ever setting foot in a courtroom.
Under the USA PATRIOT Act, the FBI could -- can -- get its hands on bank records and Internet or phone logs by issuing itself a "national security letter". A national security letter is basically just a piece of paper, issued by the Office of the Attorney General, saying that the procurement of certain information is essential for national security. No court or judge ever reviews national security letters, and businesses served by subpoenas derived from national security letters are issued gag orders so that they can never talk about having received them or given information to the FBI.
The USA PATRIOT Act allowed the FBI to issue these national security letters to find out how much money we had (and, to some extent, where we spent it and where we got it from) and to find out who we talk with (through Internet and phone records). All this without the need to prove probable cause to any judicial authority.
The VICTORY Act would have expanded this power to allow the FBI to get information about transactions with almost any business -- from libraries to hotels to eBay -- simply by issuing a national security letter.
The VICTORY Act created a huge hue and cry and so the Justice Department denied ever having really suggested it as a potential law. They said it was just an "idea" that they weren't seriously pursuing.
Well, lo and behold, they lied. Color me shocked. WIRED News reported on Monday that Congress passed an intelligence spending bill on Friday. Normally the passage of an intelligence spending bill wouldn't be a huge deal. But there was a rider on this particular spending bill that gave Ashcroft just what he wanted. There was a rider on this particular bill that greatly expands the police power of the government. The rider implements the key provision of the VICTORY Act.
This provision expands the definitions of "financial institution" and "financial transaction" as used in the USA PATRIOT Act to apply to more than just banks. Now the definition applies -- explicitly -- to "insurance companies, real estate agents, the U.S. Postal Service, travel agencies, casinos, pawn shops, ISPs, car dealers and any other business whose 'cash transactions have a high degree of usefulness in criminal, tax or regulatory matters.'"
Now, these provisions come from both DSEA '03 (which was dubbed PATRIOT Act II by many) and the VICTORY Act. In both cases incredible pressure exerted by civil liberties groups caused the bills to be dropped by the Justice Department.
But that wasn't enough to make the enemies of liberty quit. No. They're determined. They're determined to bleed the American people of every protection we have enjoyed from the federal government. They are determined to create a state in which the government can get any information it wants about you with no impediment. This is the government that wanted -- and undoubtedly still wants -- Total Information Awareness. This is the very same government that locks up so-called enemy combatants without charge, without access to attorneys, without any recourse -- whether or not they're American citizens. This is the same government that guts the First Amendment and detains and abuses foreigners without probable cause.
This is the very same government that wants to force the US Postal Service to spy on you, as Wired reported a couple weeks ago.
So instead of giving up and saying "The American people don't want a stronger FBI, they don't want a police state, they want to be safe and free," the enemies of liberty serving in the Bush Administration decided to get its police powers passed through underhanded methods.
Intelligence spending bills are considered "sensitive" and so are usually written in complete secrecy and voted on "without debate or public comment." This makes them ideal for passing controversial legislation that otherwise would never reach the President's desk. And so the enemies of liberty such as Orrin Hatch (who says that the PATRIOT Act "enhances our freedoms") inserted this key provision of the PATRIOT Act II and VICTORY Act into an intelligence spending bill. No debate. No public comment.
Hatch, by the way, is the self-same senator whose staff members broke into the "secure computer networks of two Democratic senators," as the AP reports. The senators were Dick Durbin and Edward Kennedy -- two major critics of the Bush Administration.
Hatch isn't happy just giving police state powers to the FBI -- he needs to give them to his staffers too! It's important to note, of course, that Hatch denies any involvement in the incident, has suspended a staff member and has "launched an investigation." Log files from the networks broken into by Hatch's staff members have been turned over to the Capitol Police.
As soon as President Bush signs this bill into law John Ashcroft and Robert Mueller and all their thousands of FBI agents will be able to attain the records of your life without any oversight whatsoever. No judge will be able to say "no" to them. No judge will ever know they're getting all this information on you. You won't know either.
The FBI will now be able to find out what you buy on eBay. They will be able to find out what trains you take, what hotels you stay at and when, what planes you fly on, how much you pay in rent, what you buy or sell at pawn shops, what you get insurance on... They will be able to get your bank records, your credit card records... They will, in other words, be able to get access to the electronic paper trail that defines your life. All without proving probable cause. All without any kind of oversight, judicial or otherwise.
In fact, the FBI will now be able to obtain all the information about you necessary to create a complete profile of you within the <a href="/tia/>Total Information Awareness system. TIA in its current form may be superficially dead but it could come back at any time. And, when it does, the FBI will have the legal basis to obtain any information it wants to fill out the Total Information Awareness database.
I wrote back in August about the VICTORY Act:
This will allow the government to track virtually every aspect of your financial life. Get a hotel room? Those records could be obtained by the Justice Department without a court order, and without notification to you for years. Rent a video? Buy a computer? Purchase some lingerie or a new stapler? Pay for a magazine subscription? Buy a newspaper?
The Justice Department could have access to all this information without search warrants under the VICTORY Act. Why? Why would Ashcroft want all this information? How will access to business records without a search warrant really help him catch terrorists? Is the extra ten minutes required to call the magistrate on duty really that much? Is it really too much to make a quick phone call and get a warrant faxed?
No, Ashcroft doesn't want this power because obtaining warrants take too long. He wants this power because he wants this information even when he doesn't have reason to want it. He wants to be able to get this information about anyone who looks at him funny on the street.
Given the FBI's history I can't help but be terrified. Absolute power corrupts absolutely. The FBI has historically collected huge, fat files on members of the political opposition, on dissenters, on protesters. The FBI has historically conducted illegal surveillance to fill out its files. Now the FBI has the power to build a complete picture of your life simply by telling itself that doing so is necessary for "national security".
Imagine this power being misused. Imagine this power, combined with the power to indefinitely detain anyone -- American citizen or not -- without charges based on secret evidence. Imagine this in combination with military tribunals that can result in the death penalty. Imagine this in combination with the FBI "collecting information" about antiwar protesters, as the Christian Science Monitor and New York Times have reported they do (the FBI later denied its intent was to surveil peaceful dissenters).
Democracies can be police states. Democracies can just as easily be situations where two wolves and a sheep vote on what to have for dinner. Democracies can easily turn into states where massive corporations, donating millions of dollars to political campaigns, exert an incredible amount of influence over government as personal influence wanes. Where massive state security organs surveil citizens out of fear.
More than two hundred years ago this nation was founded in rebellion against a repressively powerful government. A government that searched homes without warrants or probable cause. A government that detained citizens without cause. A government that had lost touch with its citizenry.
This government conducts searches -- much more powerful searches than were possible in the 18th Century -- without warrants. It detains citizens based on secret evidence and without publicly discernable probable cause. It asks us to "trust it". It has lost touch with its citizenry. It arrests journalists at protests and then argues about what to charge them with. Then they charge them with "resisting arrest without violence".
It's all already happening here, and it's getting worse. President Bush has made clear that he is an enemy of American liberty.
Howard Dean has publicly stated that one of his first acts as President would be to "seek to repeal the portions of the Patriot Act that are unconstitutional." He has an entire page on his Web site about the PATRIOT Act.
Dean may be our only hope. He may be the only person in this nation who can prevent the transition of America into a full-fledged police state.
All I can say is this: To those enemies of liberty, those who would take away my right to privacy, my right to free travel, my right to the sanctity of my home. To those who would scare Americans with phantoms of lost security, I say you are no patriots. I say that you have lost touch with what America should be, with the reason it was founded. America was to be a place where the government was weak, where the citizenry were strong. America was to be a place where liberty is more important than all else. You, gentlemen, have lost sight of this. You think that being an American patriot means being strong, means towing a certain political line.
Nothing could be further from the truth. These enemies of American liberty take away your freedoms by telling you that these steps are necessary for your security. Yet these very same people who take away your liberty in the name of security fail to fund first responders adequately. These very same people who take away your liberty fail to check incoming container ships for weapons of mass destruction.
If these people really wanted to protect the American people they wouldn't need to take away our liberty. They could install radiation sensors in ports. They could adequately fund first responders. They could further improve airport and border security. But they don't. Instead they take away your privacy rights. Instead they surveil people involved in dissent. Instead they indefinitely detain -- without charges and based on secret evidence -- American citizens.
Benjamin Franklin once said "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Mr. Ashcroft, Mr. Bush, Mr. Hatch: you do not deserve your liberty and you do not deserve your safety. Those of you who scare the American people with phantoms of lost security, I have this to say to you: your tactics only aid the terrorists.
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