If you read Julian Sanchez' piece yesterday on the renewal of the PATRIOT act, you know there were two major reform proposals--the civil libertarian-preferred reforms being pushed by Senator Russ Feingold, and the more moderate but still substantive changes proposed by Senator Patrick Leahy.
Well during markup yesterday, neither Feingold's proposal, which would narrow the use of National Security Letters by forcing the FBI to get an order from a judge when demanding anything more than "basic, nonsensitive data" and would require stricter standards for wiretaps, nor Leahy's proposal, which would have curbed the use of NSLs but didn't go as far as Feingold's, were adopted. Instead, as Marcy Wheeler reported, a compromise between Dianne Feinstein was reached that limits Leahy's already mild reforms, taking out the part in Leahy's proposal that would have required a concrete connection between a suspected terrorist and a potential NSL target before the government could start collecting information on them. Keep in mind that unlike Feingold's proposal, Leahy's did not touch standards for wiretaps.
The ACLU was pretty disappointed with the way things turned out yesterday. Michael W. Macleod-Ball, Chief Legislative and Policy Counsel for the ACLU's Washington office, seemed pessimistic about the possibility of more significant reforms to the PATRIOT act going forward. Referring to the Leahy-Feinstein compromise, Macleod-Ball said that the bill "includes a couple of relatively small reform measures in addition to the reauthorization, but it doesn’t go as far as the original Leahy bill, which didn’t go as far as the Feingold bill.” He added that “if you look at the votes that happened yesterday, it didn’t seem as though there are the votes there to incorporate progressive reform changes.”
Key to the watering down of both Feingold and Leahy's original proposals is the arrest of suspected terrorist Najibullah Zazi. If Wheeler's reading is right, Feinstein may have been concerned that the reforms might jeopardize the ongoing investigation of Zazi and his alleged co-conspirators.
UPDATE: Sanchez writes in to make a minor correction: Leahy's bill wouldn't have required the suspected terrorist link for SNLs, but for 215 orders, which are much broader, and which the ACLU has a good explanation of here. So only Feingold's bill made meaningful changes to the use of NSLs.
-- A. Serwer
