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Foreign Affairs

Not Letting the Patriot Act Go Gentle into that Good Sunset

Michael Hayden, director of the CIA from 2006 - 2009, and Michael Mukasey, attorney general from 2007 to 2009, have penned a WaPo article arguing against the Obama administrations reversal on extending key provisions of the Patriot Act.

The net effect of imposing sunset provisions [which terminate roving wiretap, NSLs and "lone wolf" authority as of Dec. 31, 2013], changing presumptions and adding layers of review and other administrative and judicial burdens on use of these intelligence tools, absent evidence that any of them has been abused - and there has been none - is that intelligence professionals will regard these regimens as transitory. Confidence and initiative will be degraded. The wall between intelligence-gathering and criminal investigation, thought before Sept. 11 to have been required by statute or the Constitution, but realized afterward to have been unnecessary, will be rebuilt. If intelligence bureaucracies are taught that they incur only burdens and risk criticism by seeking to gather intelligence, they will revert to pre-Sept. 11 mode, and await the next cycle of criticism for failing to connect "dots" they have been discouraged from gathering. The existing procedures for obtaining even an "emergency" authorization under the Foreign Intelligence Surveillance Act already generate reams of documentation through several layers of bureaucracy; there is no need to find out how many more straws the camel's back can bear.

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