In the aftermath of 9/11, legislators cut legal corners to protect the nation. Congress should amend that now by revising certain expiring provisions of the law.
October 25, 2009
Along with the Guantanamo Bay detention facility and the Bush administration's illegal eavesdropping on U.S. citizens, the USA Patriot Act came to symbolize the excesses of the post-9/11 war on terrorism. Now, as it weighs the extension of three expiring provisions, the Democratic-controlled Congress has an opportunity to restore key privacy protections that were forgotten in the aftermath of the attacks.
Earlier this month, the Senate Judiciary Committee approved a bill to renew the provisions and sent it to the Senate floor. Unfortunately, though the bill is an improvement over current law, it still falls short. The full Senate and House, where an extension bill was introduced last week, can do better.
The USA Patriot Act, supported by members of Congress from both parties and signed by President George W. Bush only 6 1/2 weeks after 9/11, is formally known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The grandiose title, like the law's hasty enactment, reflected the national resolve to do something, anything, to prevent a repeat of 9/11.
Some parts of the original act were relatively uncontroversial, including those permitting the CIA and the FBI to share information more freely and allowing investigators to seek warrants for "roving wiretaps" targeted at individuals rather than telephone numbers. Others, however, unjustifiably eroded privacy rights. Particularly troubling were rules governing the acquisition of financial and other records that allowed investigators to conduct fishing expeditions -- as long as the documents were deemed "relevant" to a search for terrorists.
In December, three provisions of the Patriot Act are set to expire: those dealing with roving wiretaps and the acquisition of records, and another (added in 2004) that allows surveillance of what are known as “lone wolf” terrorist suspects. All three extensions strike us as reasonable, though in one case further privacy protections are essential.
In the era of disposable cellphones, it makes sense for investigators, with a court order, to be able to listen in on a targeted suspect's calls regardless of where he is. And roving wiretaps long have been used in criminal investigations.
Defense ministers do not discuss numbers, but broadly support Gen. McChrystal's recommendation for a troop buildup. Some consider boosting their own contributions too, U.S. Defense chief Gates says.
By Julian E. Barnes October 24, 2009 Reporting from Washington
America's NATO allies signaled broad support Friday for an ambitious counterinsurgency strategy in Afghanistan, adding to the momentum building for a substantial U.S. troop increase.
NATO defense ministers meeting in Bratislava, Slovakia, endorsed the strategy put forward by Army Gen. Stanley A. McChrystal, the U.S. and allied commander. The alliance rejected competing proposals to narrow the military mission to fighting the remnants of Al Qaeda.
They did not discuss specific troop levels, but U.S. Defense Secretary Robert M. Gates said a number of allies indicated they were thinking about increasing their own military or civilian contributions.
"The only way to ensure that Afghanistan does not become once again a safe haven for terrorism is if it is made strong enough to resist the insurgency as well," said Anders Fogh Rasmussen, the NATO secretary-general. "In Afghanistan, you cannot separate counter-terrorism from counterinsurgency."
As the Obama administration reviews U.S. strategy, the NATO endorsement is likely to add impetus to McChrystal's request for a reported 40,000 additional troops to protect the Afghan people, shore up the government and counter Taliban militants.
It is unlikely that defense ministers of the North Atlantic Treaty Organization would have issued such an unambiguous endorsement of McChrystal's plan without at least the tacit approval of U.S. officials.
Gates attended the meeting and made no attempt to counter the move by the ministers to throw their backing behind McChrystal's recommendation. Gates is considered a supporter of the plan, but has avoided publicly discussing his views.
"I was in a listening mode," Gates said at a news conference. "We are here to consult."
The endorsement came at a time of increasing confidence among military and other government officials in Washington that the administration will agree to much of McChrystal's request. Showing that the administration has the support of allies would be crucial to President Obama's ability to make his case for a troop increase to the U.S. public.
Developments in Afghanistan's presidential election may clear another potential hurdle. President Hamid Karzai's acceptance of a runoff election could provide the Afghan government with the legitimacy experts say is essential to McChrystal's strategy.
Drug traffickers shot down a police helicopter during a gun battle between rival gangs Saturday, killing two officers in a burst of violence just two weeks after the city was chosen to host the 2016 Olympic Games.
Ten suspected drug traffickers were also killed during the fighting in a shantytown, along with two bystanders, officials said.
Bullets flying from the Morro dos Macacos, or Monkey Hill, slum in north Rio de Janeiro hit the pilot of the police helicopter in the leg as he hovered above the shootout, causing the craft to go down.
Two officers died in the crash. The pilot and three other police officers escaped after the craft hit and burst into flames. The pilot and a second officer suffered bullet wounds and all four were burned, one gravely, said Mario Sergio Duarte, head of Rio state's military police.
Officials did not know whether the gangs targeted the helicopter or whether it was hit by stray bullets, but the event underscored security concerns that have dogged Brazil's second-largest city for decades.
It was not clear what sort of weapon hit the helicopter, but Duarte said it was unlikely to have been an antiaircraft missile. Such weapons have been found in the hide-outs of drug traffickers along with other heavy military-grade arms, such as grenade launchers and .50-caliber machine guns.
Duarte said the pilot was able to make a somewhat controlled though extremely rough landing, which he said would have been unlikely if the aircraft had been hit by a heavy weapon.
Police said 10 presumed traffickers were killed during the fighting in the slum, including three suspects found dead in a vehicle.
Suicides among veterans average 18 a day, by the government's estimation, and a backlog of disability claims for post-traumatic stress disorder and other untreated ailments approaches 1 million.
With a massive military drawdown from Iraq and Afghanistan potentially on the horizon, lawyers for the veterans want a federal appeals court to order the Department of Veterans Affairs to make good on the nation's commitment to take care of those wounded in mind as well as body.
It is an onerous task that a lower court has already deemed beyond the power of the judiciary to correct. And the latest appeal, to the U.S. 9th Circuit Court of Appeals, has also been met with reluctance by the judges to tell a government bureaucracy how it should conduct its affairs.
"Go and get a sandwich together," Chief Judge Alex Kozinski suggested recently, urging the lawyers to work on a settlement. He said he could see goodwill on both sides "to do the right thing for our veterans who fought and bled for our country."
Kozinski's Solomon-like departure from the three-judge panel's usual role of hearing arguments and issuing a decision has given the lawyers until Sept. 1 to try to work out a solution through the 9th Circuit's mediation services.
The suggestion prompted deep skepticism on both sides.
"This case has already been determined to be not susceptible to mediation," Charles Scarborough of the Department of Justice told the court, which heard arguments on Aug. 12. Government policy prohibits Scarborough from saying more than what was put on the record at the hearing, said Justice Department spokesman Charles Miller.
Gordon Erspamer, a San Francisco lawyer with Morrison & Foerster who is representing the veterans pro bono, also said he couldn't comment on the likelihood of a negotiated settlement, but said that any such agreement would involve time-consuming consultations within the federal executive hierarchy.
"The government is always very difficult to deal with in cases that involve constitutional issues," Erspamer said. "I don't mean that they're mean-spirited or rude, it's just that the issues are difficult for them to ever agree upon in a solution out of court."
Scarborough and Erspamer faced off before Kozinski and two other 9th Circuit judges, Stephen Reinhardt and Procter Hug Jr. All three judges questioned the lawyers about the long delays and tragic consequences of unaddressed mental health problems. Erspamer said it's a crisis that will escalate in the next year or two when the U.S. military draws down hundreds of thousands of troops from the war zones.
Erspamer told the panel that 3,000 veterans die each year while their appeals are pending, a process that takes almost two years on average. An internal e-mail from the veterans department introduced in last year's trial also disclosed the staggering suicide figures, an annual rate of more than 6,500 from a variety of causes but many suspected to be acts of despair by veterans with untreated post-traumatic stress disorder.
Scarborough said that only about 4% of department decisions about care or coverage are subject to "significant delays," and that pilot programs to improve on the timely delivery of services were underway.
Kozinski asked whether the other 96% were satisfied customers or if many might have gotten frustrated and abandoned their claims.
Erspamer said that was precisely what was happening, with even those with the most severe mental illnesses being turned away from veterans hospital emergency rooms and told to get on the waiting list for appointments.
"Then they go home and kill themselves," Erspamer told the court.
The judges appeared perplexed, though, as to how they could effect change with a court order.
"How do we go about telling an agency 'You've got to work faster?' How do you implement something like that?" Kozinski asked Erspamer. "If we find in your favor, what's to keep the federal courts from taking over and running any agency of government? We've got lots of agencies that are slow."
That was the view of U.S. District Judge Samuel Conti, who agreed after an April 2008 trial that veterans suffered unjust claim denials and unacceptable delay in treatment but said the problem was beyond the court's ability.
Veterans following the legal challenge said they were encouraged by the judges' apparent sympathy for them but frustrated by what looks to be months, if not years, more legal and procedural wrangling.
"As a veteran, I think veterans deserve much better than what they're getting. As a private citizen, I'm ashamed that we have to sue the Veterans Administration to get what veterans deserve," said Bob Handy, a Korean and Vietnam War-era Navy veteran and chairman of Santa Barbara-based Veterans United for Truth. "They take these kids out of high school at 17, 18, 19 years old, send them off to boot camp to learn how to kill, send them off to kill, then when they come back they just throw them away like trash."
If no compromise can be reached by the lawyers by Sept. 1, the judges will then deliberate over the two sides' arguments and eventually issue an opinion and possible order.
If you had seen Tatiana Reyes in the water at Zuma Beach last week, gliding smoothly toward the shore, you couldn't have guessed she was nearly killed in a crippling explosion while serving in Iraq. She looked like she could have been one of the surfing instructors.
If you had seen a smiling Richard Pineda stand up cleanly on wave after wave, with confidence and uncanny balance, you couldn't have imagined he needs a GPS device to remember how to get back home after an outing.
The concept sounds counterintuitive at first: You take veterans recovering from brain trauma and other injuries suffered in Iraq and Afghanistan and, for therapy, you put them on surfboards for the first time in their lives, lead them into the chilly, crashing surf and wish them luck.
But this is what the medical staff at the VA hospital in West L.A. is trying, and Pineda is among dozens of veterans who say the prescription is helping.
"Being out there, I have freedom," said Pineda, 32, a Marine who lives in Los Feliz.
Pineda was too close to far too many explosions and mortar attacks while serving in Iraq in 2003 and 2004. Like a lot of vets, he kept his struggles to himself after returning home. He didn't talk about the memory lapses or the noises and smells that triggered flashbacks, but friends knew he needed help when they saw him cowering at a fireworks show in 2005. It turned out that on top of his emotional issues, Pineda was having small cerebral aneurysms. He was referred to a polytrauma unit at the VA.
The chief of physical therapy there, Randi Woodrow, had been to a Camp Pendleton surf clinic run by a friend.
"It was absolutely one of those life-changing events," said Woodrow, who saw smiles on the faces of injured vets and knew she had to make surfing a regular part of her program in Los Angeles.
The guy who helped make it happen was Tom Tapp, a Los Angeles entertainment journalist who had been inspired by meeting an amputee while surfing. He then saw a news story about men and women with missing limbs coming home from the war and immediately started Operation Amped, getting support from the William Morris Agency and Billabong, among other companies.
Tapp and Woodrow have staged several of the surf clinics each year since 2007, and one of Woodrow's first patients to put on a wetsuit was Richard Pineda.
"I was pretty excited about it," said Pineda, but that's not how Woodrow remembers it.
"Tatiana and Richard were both very timid," she recalled. "It was a lot of sensory overload."
Not only had neither of them ever surfed; their disabilities made the prospect of getting thrashed by waves all the more intimidating. They had one thing going for them, though, Woodrow said. They were trained to follow orders, and she and Tapp had recruited a battalion of volunteer surf instructors -- including physicians and therapists -- to lead the mission.
On his very first day as a surfer, Pineda stood up on a board. Now that he's been back several times, he rides everything. Small rollers. Right breaks. Even waves that are probably too big, but no instructor is inclined to hold him back.
"Yeah, Richard!" is heard over and over at Zuma, as a smiling Pineda comes barreling toward the shore in a spray of white foam.
"He's a horse," VA psychiatrist and longtime surfer Jon Sherin told me as we bobbed in the waves and watched Pineda ride to shore time after time in his low stance, arms extended like wings.
Sherin, associate chief of psychiatry and mental health, has given surfing pointers to vets battling post-traumatic stress disorder, and he's also helped paraplegics and a quadriplegic ride waves.
"Whether you agree with the war or not," Sherin said, "we have a duty to help look after them and re-integrate them."
Surfer that he is, Sherin said there's something Zen about riding waves and being present in the moment, rather than in a constant reflection of lingering pain and stress. For vets, in particular, he thinks standing up on a board with a tidal force at your back helps to "de-mysticize and de-energize fear."
There was a time when Reyes, 24, could not have imagined trying to surf. The Gardena woman had enlisted in the Army at 21 and soon found herself driving a truck through Iraq.
"You saw things blow up and you got shot at," she said.
Danger became so routine, she didn't give it much thought. But on March 9, 2007, an explosive device hit her truck.
"I don't remember much," she said. "I was in and out of consciousness."
Her left leg was nearly destroyed, her lungs had collapsed, her colon was damaged, she had a brain injury and flesh had burned off her withered left leg. Doctors patched her together and she was flown to Germany for treatment, but she has no recollection of any of that. Next she was sent to Walter Reed Army Medical Center for months of treatment and too many surgeries to count.
"They told my family, like, 'I don't think she's going to make it.' "
But Reyes fought through the physical injuries and then the psychological ones as well. She found herself conflicted about the war itself, troubled by all the death and suffering and crushed by the thought of being disabled for life. Once she returned to California, she was deeply depressed, had trouble sleeping and weighed only 80 pounds.
And they wanted her to go surfing?
All right, she said.
"I was so scared the first time. I was so weak."
Reyes had to be helped into the water, but there she was on a board, confronting her fears, wiping out and trying again. In her third outing last week, she was standing up with help from instructors and riding waves. Before I knew her story, I was in the water and saw Reyes paddling by me with a smile on her face. The wetsuit covered her scars, which was why I assumed she was one of the instructors.
Later, as she told me her tale on the beach, she was charming and self-possessed, and funny too.
"I did some cool things in the Army," she said, "but blowing up was a negative."
At an awards ceremony after the surfing, Dirk Ortega, who was badly injured in training before he shipped out with his army unit, was named the most inspirational vet on a board.
Pineda got an award for riding the longest wave.
And Reyes was named
the hardest charger, a reference to more than the way she surfs.
