Safeguards are important because they guard against abuse. But they are also important because they allow people, businesses, and legislators to track how a law is working, whether it is effective and what are the costs. This is especially important when the law seriously impacts individual rights and liberties, and operates outside the watchful public gaze.
I actually don't think many of the provisions should be renewed at all. However, documents (pdf, 3.1 mb) obtained by the Electronic Privacy Information Center (EPIC) under the Freedom of Information Act demonstrate why the Patriot Act should definitely not be renewed without inclusion of serious and meaningful safeguards against and penalties for abuse.
The documents focus on 13 cases from 2002 to 2004 that were referred to the Intelligence Oversight Board, the arm of the President's Foreign Intelligence Advisory Board that is charged with examining violations of the laws and directives governing clandestine surveillance. According to the Washington Post:
In several of the cases outlined in the documents released to EPIC, FBI agents failed to file annual updates on ongoing surveillance, which are required by Justice Department guidelines and presidential directives, and which allow Justice lawyers to monitor the progress of a case. Others included a violation of bank privacy statutes and an improper physical search, though the details of the transgressions are edited out. At least two others involve e-mails that were improperly collected after the authority to do so had expired.
Some of the case details provide a rare peek into the world of FBI counterintelligence. In 2002, for example, the Pittsburgh field office opened a preliminary inquiry on a person to "determine his/her suitability as an asset for foreign counterintelligence matters" -- in other words, to become an informant. The violation occurred when the agent failed to extend the inquiry while maintaining contact with the potential asset, the documents show.
I agree with David Sobel, EPIC's general counsel, who said: We're seeing what might be the tip of the iceberg at the FBI and across the intelligence community...It indicates that the existing mechanisms do not appear adequate to prevent abuses or to ensure the public that abuses that are identified are treated seriously and remedied, and Michael Froomkin who writes on his blog: The trouble is...given the extent of the violations we are now learning about, one has to wonder how many others never even got written up.
The problem with lack of safeguards and oversight mechanisms has also made it difficult for businesses to understand the impact of the Patriot Act.
Chip Pitts, a lecturer at Stanford Law School and the chairman of the Bill of Rights Defense Committee of Greater Dallas wrote in the New Republic that leading business organizations including the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Association of Realtors, the Association of Corporate Counsel, and the Financial Services Roundtable all expressed strong reservations regarding the law in a recent letter to the Hill. Why was their response so slow in coming?
A key reason, according to Susan Hackett, general counsel of the American Association of Corporate Counsel, is that gag orders in the original Patriot Act slowed efforts to assemble information about the law's full economic impact by preventing individual businesses from revealing the details of subpoenas they had received under the law. But as the number of subpoenas grew and as federal courts questioned whether the gag orders violated the First and Fourth Amendments businesses began to step forward--and the law's burdensome impact became clear.
Without oversight mechanisms, there is no accountability. Without accountability, one cannot accurately gage the success/failures or costs/benefits of the Act. Here, it appears that where facts and figures do become available, they point to burdensome legislation abused by the FBI.
This is NOT legislation that should be renewed-- Certainly not without adequate and effective safeguards.