Forget the White House\u2019s doomsday talk about American intelligence going blind. Thanks to backdoor provisions and alternate collection schemes, U.S. spies will keep on snooping.<\/p>\n
President Obama and his top national-security officials spent the past few days warning that once intelligence-gathering authorities in the Patriot Act expired just after midnight Sunday, the United States would face a greater risk of a terrorist attack.<\/p>\n
That argument is highly debatable\u2014at least, in the short term. Not only does the U.S. government have all sorts of other ways to collect the same kind of intelligence outlined in the Patriot Act, but there\u2019s also a little-noticed back door in the act that allows U.S. spy agencies to gather information in pretty much the same ways they did before.<\/p>\n
In other words, there\u2019s a zombie Patriot Act\u2014one that lives on, though the existing version is dead.<\/p>\n
On Sunday night, senators voted overwhelmingly to end debate on a measure passed in the House, the USA Freedom Act, which will leave most surveillance authorities in the Patriot Act intact. But some of those powers won\u2019t expire at least until Tuesday and possibly Wednesday. Administration officials had warned that even a momentary interruption posed a grave risk.<\/p>\n
\u201cI don\u2019t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we\u2019re dark, and heaven forbid we\u2019ve got a problem where we could\u2019ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity,\u201d Obama told reporters at the White House on Friday. On Sunday, CIA Director John Brennan said on CBS\u2019s Face the Nation that there\u2019d \u201cbeen a little too much political grandstanding and crusading for ideological causes that have skewed the debate on this issue,\u201d an apparent reference to Sen. Rand Paul, a Republican presidential candidate, and his promise to force the law to expire, \u201cbut these tools are important to American lives.\u201d<\/p>\n
They may be. But they are far from the only tools in the counterterrorism arsenal, and though they are no longer law as of Monday, the United States still has plenty of authority to collect intelligence on jihadis and foreign spies.<\/p>\n
For starters, there will be what\u2019s left of the Patriot Act itself. One former U.S. intelligence official told The Daily Beast that Section 214 of the law, which allows \u201cpen register\/trap & trace,\u201d could be used to collect phone and even email records. That would not only cover the gap from the expiring NSA program that collects the phone records of Americans\u2019 landline calls, but potentially expand the government\u2019s collection. (No wonder the NSA largely views the bill that would reform the Patriot Act as a major win.)<\/p>\n
That former official and another both noted that there are other tools, including under different laws than the Patriot Act, for obtaining \u201croving wiretaps,\u201d which allow the government to monitor one person\u2019s multiple communications devices.<\/p>\n
Following the Senate vote to proceed on to the Freedom Act, Sen. Jim Inhofe (R-OK) told The Daily Beast that the intelligence agencies did have a means to continue surveillance of terrorists and spies.<\/p>\n
\u201cI think there are other tools that can be used, but I\u2019m not going to elaborate on them,\u201d Inhofe said. <\/p>\n
Director of National Intelligence James Clapper said in a statement Friday if that provision expires, \u201cwe will no longer be able to get orders allowing us to effectively track terrorists and spies who switch communications devices.\u201d<\/p>\n
Maybe not under the Patriot Act. But both former officials said they were confident that a judge would still grant a warrant drawn up for a single suspect and his multiple devices. They also pointed out that the roving-wiretap provision itself has rarely been used. (According to U.S. courts, 11 roving-wiretap orders were issued in 2013, the most recent year for which figures are available.)<\/p>\n
Then there\u2019s another powerful tool that the FBI and intelligence agencies have long had in their arsenal and still will\u2014national-security letters. They make it relatively easy for investigators to gather up all kinds of communications records. This authority can be used to collect phone, Internet, and financial records.<\/p>\n
National-security letters were actually around before the Patriot Act became law in 2001, but the legislation lowered the standard that the government must meet to obtain them. They\u2019ll still be comparatively easy to get now that portions of the Patriot Act are off the books.<\/p>\n
As for another fearsome sounding and about-to-die provision, the \u201clone wolf\u201d authority that lets the government track someone who isn\u2019t connected to a known terrorist group, it has never been used. That\u2019s despite the fact that the very threat for which it was written\u2014attacks by individuals who are merely inspired by extremist groups, such as ISIS, but aren\u2019t actually connected to them\u2014appears to be at an all-time high. Whatever provision of law is meant to stop these would-be killers, it\u2019s apparently not in the part of the Patriot Act that expired Sunday night.<\/p>\n