For a minute, it almost looked like Democrats were going to put up a fight on the PATRIOT Act as it came up for reauthorization. With a majority in Congress, a clear list of reforms set out by Russ Feingold and six other Democrats in the JUSTICE Act, and a president who had presented himself as a friend to civil libertarians, it certainly seemed possible.
In late September, during a Senate Judiciary Committee hearing, Sen. Al Franken of Minnesota made a great show of questioning whether the roving wiretap provisions of the PATRIOT Act were constitutional. He read the Fourth Amendment, which guards against unreasonable search and seizure, aloud to a stunned Assistant Attorney General David Kris. Franken noted that the amendment contains "pretty explicit language" about such intrusions and asked Kris whether he thought the roving wiretap provision fit that standard.
"This is surreal," Kris responded before going into a technical explanation of the legal justifications for roving wiretaps.
Last week, the administration outmaneuvered most congressional efforts to strengthen civil-liberties protections in the PATRIOT Act reauthorization, inserted provisions in the Homeland Security appropriations bill that would prevent the release of torture photographs that are the subject of a pending FOIA request, and is now poised to sign a defense authorization bill that contains changes to the military commissions that fall short of what the administration itself said might be overturned by the appellate courts. While most news outlets were focused on the health-care debate and President Barack Obama's unexpected Nobel Prize win, the administration successfully foiled civil-liberties advocates' efforts to rein in Bush-era executive powers -- and with little resistance from Democrats. Franken, who had so thrilled liberals with his staunch defense of the Fourth Amendment back in September, ultimately ended up voting the PATRIOT Act reauthorization out of committee.
When Russ Feingold introduced the JUSTICE Act along with six other Democrats and Bernie Sanders, the goal was to rein in several provisions of the PATRIOT Act -- including the infamous National Security Letters, which an inspector general's report found were subject to widespread abuse. As Julian Sanchez wrote for the Prospect last week, the NSLs have, in the past, been subject to widespread abuse by the FBI, and the agency issued more than 24,744 of such letters in 2008 alone. The FBI uses NSLs to obtain customer records from commercial and financial institutions without a search warrant -- the letters also place a gag order on the recipient to prevent them from alerting the target of an investigation, something that may be unconstitutional.
"They admitted they were using them not to track bad guys but to rule [suspects] out, which is backward," says Michelle Richardson, a legislative counsel with the ACLU. "This is the absolute epitome of how the government has treated U.S. citizens since 9/11 -- everyone's guilty until proven innocent. They sweep up as much information as they can, keep it forever, and use it for who knows what purposes."
Part of what makes debate over surveillance so difficult, Richardson says, is that there's so much secrecy involved in collection methods that it's hard to even understand what's at stake.
Feingold's bill would have curtailed the use of NSLs as well as "215" orders, which allow the government to seize "any tangible thing" as long as it can demonstrate "relevance" to an ongoing terrorism investigation. The JUSTICE Act also would have reformed the FISA Amendments Act to limit "bulk" collection of U.S. citizen communications and forced the government to demonstrate pertinence to fighting terrorism.
Instead, Democrats, led by Dianne Feinstein -- who argued the proposed reforms would damage the ongoing investigation against Najibullah Zazi, an argument repeated by Attorney General Eric Holder -- passed PATRIOT Act reauthorization out of committee with only mild reforms. The current bill preserves continued audits of the surveillance tools outlined in the PATRIOT Act and limits the initial time period during which the government can delay notice of a search to the target, called a "sneak and peak" search. As Charlie Savage reported for The New York Times, Sen. Jeff Sessions of Alabama, a frequent opponent of the administration, inserted a series of last-minute amendments, described as "verbatim" requests from the administration, circumventing other mild reforms in the "compromise" bill agreed to by Feinstein and Chairman Patrick Leahy.
The bill passed by the Judiciary Committee, which Feingold derisively referred to as the "prosecutor's committee," left the senator "scratching his head" as to "how a committee controlled by a wide Democratic margin could support the bill it approved." Civil-liberties advocates were especially surprised by Sen. Patrick Leahy, who proposed a much milder set of reforms than Feingold but eventually voted for a bill that didn't have them. As Marcy Wheeler noted, Feinstein and Leahy had derided the 215s and NSLs as "fishing expeditions" back in 2005 during the last reauthorization. But that, after all, was when the GOP was still in charge.
Sessions wasn't the only one of the administration's usual antagonists to lend a hand. Sen. Joe Lieberman of Connecticut, fresh off of threatening to investigate the administration's "czars," inserted an amendment into the Homeland Security Appropriations bill that would exempt the photos of detainee abuse at the hands of American officials from Freedom of Information Act requests and give the secretary of defense the authority to veto the release of similar records. The amendment is similar to one proposed as part of a separate bill by Lieberman and Sen. Lindsay Graham of South Carolina back in June, supported by the Obama administration but ultimately defeated. The ACLU is currently suing the administration for release of the photos. Courts have twice ruled in the ACLU's favor, and the Supreme Court is currently considering whether to accept the administration's appeal.
"Democracies are never made stronger by concealing evidence of their own mistakes and wrongdoing," said Jameel Jaffer, director of the ACLU's National Security Project. Noting the appropriations bill hadn't passed yet, Jaffer added, "We're still hopeful the legislation won't become law."
The picture grows somewhat brighter for civil-liberties activists with the revised rules for the military commissions outlined in the Defense Authorization Act. There are three significant parts of the defense bill that civil libertarians are relieved by -- Rep. Rush Holt's proposal to mandate videotaping government interrogations at a Defense Department facilities passed the House, and the bill allows the administration to transfer Guantánamo Bay detainees to American soil for prosecution, and contains stronger rules on coerced evidence.
The rules on coerced evidence are key. The administration had warned previously the military commissions used to try suspected terrorists would not be constitutional without better restrictions on coerced evidence. The current version of the bill contains evidence language human-rights advocates say will pass constitutional muster. An undisclosed May 2009 memo from the Office of Legal Counsel reportedly said that the commissions would be unconstitutional without such a restriction.
While groups like the ACLU and Human Rights Watch remain opposed to the military commissions in principle, they're relieved. If the bill passes, the rules for military commissions will so resemble those for civilian courts that Stacy Sullivan, a counterterrorism adviser at Human Rights Watch, questions why the administration is clinging to commissions in the first place. "The fairer they make the military commissions, the less they have to gain by [them]." One reason may be that the military-commissions process gives the executive branch the ability to determine what information remains secret and what doesn't, whereas in a civilian court the judge has a say. The current version of the bill also has stronger restrictions on the use of hearsay evidence than in previous incarnations.
Despite some positive reforms, the bill contains other problems. Assistant Attorney General Kris and Pentagon General Counsel Jeh Johnson warned back in July that retaining "material support" charges among the crimes that can be tried in a military commission might not stand up under judicial review, because "material support" is not considered a war crime.
The bill not only retains "material support" among charges that can be tried in military commissions, but the Senate ignored the administration's request for a sunset provision. Human-rights and civil-liberties advocates had speculated the administration wanted to use the military commissions only for "hard cases" left behind by the Bush administration -- those compromised by torture or built solely on intelligence information. But the current Senate bill enshrines the military commissions for use in the foreseeable future. There is also no exemption for minors -- the United States would join Rwanda as the only countries to try minors for war crimes.
On Oct. 6, Attorney General Holder called the alleged Zazi plot one of the most dangerous since 9/11, citing it as a reason to reauthorize the PATRIOT Act as soon as possible. "This wasn't merely an 'aspirational' plot with no chance of success," Holder told reporters at the Justice Department. "This plot was very serious and, had it not been disrupted, it could have resulted in the loss of American lives."
Holder's statement was a subtle knock at the prior administration, which Democrats often accused of inflating terrorism threats to justify civil-liberties abuses. But perhaps the most remarkable thing about Holder's statement was how similar it was to then-President George W. Bush declaring in 2006 that the PATRIOT Act had helped foil a plot allegedly concocted by Khalid Sheik Mohammed, the architect of the 9/11 attacks, targeting Los Angeles' Library Tower and that it should therefore be renewed.
"As the West Coast plot shows, in the war on terror, we face a relentless and determined enemy," Bush said.
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