Senate Majority Leader Harry Reid moved to block any changes to a bill reauthorizing three expiring provisions of the PATRIOT Act on Tuesday, rebuffing bipartisan efforts by a small group of senators to rein in the law's powers. In response, Reid and his supporters expressed concern that if the provisions weren't authorized immediately, American lives would be in danger.
Senate Intelligence Committee Chair Dianne Feinstein told reporters that "if somebody wants to take on their shoulders not having provisions in place which are necessary to protect the United States at this time, that's a big, big weight to bear."
Let's be clear: What is at stake here is not the PATRIOT Act in its entirety but amendments that would provide more checks on its powers -- and force the government to report on how useful and effective they are. The three expiring provisions are the never-used "lone wolf" provision, orders that give the government authority to seize private records, and the roving-wiretap provision. The lone-wolf provision allows the government to track foreigners it believes are planning terrorist activity, even if the targets lack established connections to terrorist groups. Section 215 lets the government obtain "any tangible thing" deemed relevant to a terrorism investigation, usually business records. Roving wiretaps allow investigators to monitor any avenues of communication, such as phone calls or e-mail addresses, it believes the target of a terrorism investigation is using, without even having to name the target in a warrant. Monday, eight Senators -- including three Republicans -- voted against cloture, and yesterday, 12 opposed Reid's effort to circumvent changes to the bill.
Over the past decade, Congress has had little trouble reauthorizing PATRIOT Act provisions regardless of which party controlled Congress or the White House. But over the past few months, the Republican Party's libertarian wing and liberal-to-moderate Western Democrats have joined forces to rein in the PATRIOT Act and provide more oversight over the use of its broad powers. "We've been working in cahoots on this since February," says a Senate aide.
On Monday, a bipartisan amendment introduced by Democratic Sen. Patrick Leahy of Vermont and co-sponsored by Republican Sen. Rand Paul of Kentucky would have also required the government to conduct more audits of PATRIOT Act powers. Paul and Leahy's reforms also would have let the provision for national security letters, which allow the government to subpoena communications records without a warrant, expire in 2013, four years earlier than Reid's deal. They also would have made it easier for recipients of NSLs and 215 orders to challenge the gag orders that come along with them. Civil-libertarian advocates believe sunsets are crucial opportunities for revisiting laws they see as too broad. Democratic Sens. Mark Udall and Ron Wyden also proposed an amendment that would force the government to provide more information to Congress or the courts before it makes use of the expiring provisions.
Monumental changes to the PATRIOT Act weren't realistically on the table. Most of the proposed reforms "wouldn't [have] significantly rein[ed] in the government's spying authority," said Michelle Richardson, legislative counsel with the American Civil Liberties Union. "It's much more about accountability and oversight." But government oversight of PATRIOT powers has been crucial in the past to uncovering government excesses -- audits of the national security letters in the past have shown widespread abuseof that authority. The Leahy-Paul amendment also would have compelled the inspector general to audit the use of pen registers and trap and trace devices, tools which allow the government to monitor phone calls and e-mails. Such an audit hasn't been done before.
"It's actually quite critical," Richardson says. "[The audit] is a tool that's never been explained publicly, in 10 years, one of the most secretive tools in the PATRIOT Act."
Leahy and Paul's proposal shouldn't have been controversial. Earlier versions had passed the Senate Judiciary Committee with bipartisan support. In November 2009, when Leahy offered his first version of this proposal, the Obama administration gave its support and even offered to implement some of the oversight provisions voluntarily. But without the Leahy-Paul amendment, that oversight will remain voluntary.
But including even these mild reforms and oversight provisions to the bill could have jeopardized the deal reached between Democratic leadership in the Senate and Republicans in the House. On the Senate floor, Reid gave Paul a figurative pat on the head, telling him that he would "learn over the years that it's always difficult to get what you want in the Senate -- it doesn't mean you won't get it, but sometimes you have to wait to get it done."
The Senate's small civil libertarian-friendly wing failed to reform the PATRIOT Act this time around, but it will have more opportunities to test its influence and sustainability in the near future. Next year, the 2008 FISA Amendments Act, which gave the government more leeway to conduct massive surveillance with minimal judicial review, will sunset. When then-candidate Barack Obama abandoned his prior criticism of the Bush administration and supported the bill, it was his first substantial betrayal of his civil-libertarian supporters, one that foreshadowed their disappointment with his failure to meaningfully depart from Bush-era national-security policies as president.
"It's not so simple that you can just say that I'm either against terrorism, or I'm going to let terrorists run wild and take over the country," Paul said during his floor speech on Monday. "You can be opposed to terrorists. You can go after terrorists. We can go after murderers, and rapists, and people who commit crimes. But we can do it with a process that protects the innocent."
