White House Engaged in Misinformation Campaign

from the ACLU

Here is an item-by-item rebuttal to a slew of false claims that President Bush made in a recent speech in Buffalo about the USA Patriot Act.

The President: "By the way, the reason I bring up the Patriot Act, it's set to expire next year. I'm starting a campaign to make it clear to members of Congress that it shouldn't expire. It shouldn't expire for the security of our country."

The Truth: Less that 10 percent of the Patriot Act expires; most of the law is permanent and those portions that do sunset will not do so until December 31, 2005.

The President: "And that changed, the law changed... roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see?"

The Truth: Roving wiretaps were available prior to 9/11 against drug lords and terrorists. Prior to the law, the FBI could get a roving wiretap against both when it had probable cause of crime for a wiretap eligible offense. What the Patriot Act did is make roving wiretaps available in intelligence investigations supervised by the secret intelligence court without the judicial safeguards of the criminal wiretap statute.

The President: "... see, I'm not a lawyer, so it's kind of hard for me to kind of get bogged down in the law. (Applause.) I'm not going to play like one, either. (Laughter.) The way I viewed it, if I can just put it in simple terms, is that one part of the FBI couldn't tell the other part of the FBI vital information because of the law. And the CIA and the FBI couldn't talk."

The Truth: The CIA and the FBI could talk and did. As Janet Reno wrote in prepared testimony before the 9/11 commission: "There are simply no walls or restrictions on sharing the vast majority of counterterrorism information. There are no legal restrictions at all on the ability of the members of the intelligence community to share intelligence information with each other.

With respect to sharing between intelligence investigators and criminal investigators, information learned as a result of a physical surveillance or from a confidential informant can be legally shared without restriction.

While there were restrictions placed on information gathered by criminal investigators as a result of grand jury investigations or Title III wire taps, in practice they did not prove to be a serious impediment since there was very little significant information that could not be shared."

The President: "Thirdly, to give you an example of what we're talking about, there's something called delayed-notification search warrants.... We couldn't use these against terrorists [before the Patriot Act], but we could use against gangs."

The Truth: Delayed-notification--or so-called sneak-and-peek search warrants--were never limited to gangs. The circuit courts that had authorized them in limited circumstances prior to the Patriot Act did not limit the warrants to the investigation of gangs. In fact, terrorism or espionage investigators did not necessarily have to go through the criminal courts for a covert search - they could do so with even fewer safeguards against abuse by going to a top secret foreign intelligence court in Washington.

For criminal sneak-and-peek warrants, the Patriot Act added a catch-all argument for prosecutors - if notice would delay prosecution or jeopardize an investigation - which makes these secret search warrants much easier to obtain.

The president's sneak-and-peek misstatement clearly demonstrates that the Patriot Act is not limited to terrorism. In fact, many of the law's expanded authorities can clearly be used outside the war on terrorism.

The President: "Judges need greater authority to deny bail to terrorists."

The Truth: The new presumptive detention that the president is proposing takes judicial authority away from the bail process. The presumption would take away the prosecution's burden of showing that the accused is a danger or a flight risk and instead puts it on the accused.