Congressional leaders in both parties made a deal to extend three expiring provisions of the Patriot Act for four more years with little debate. Earlier this year, the same provisions – roving wiretaps, court-approved access to business records, and “lone wolf” provisions allowing surveillance on foreign citizens without connections to terrorists – were extended for 90 days.
The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire, according to officials in both parties who spoke on condition of anonymity. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government.
Support for the extension was unclear. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., wanted tighter restrictions on the government’s power and may seek to amend it. In the House, members of the freshman class elected on promises of making government smaller were skeptical.
“I still have some concerns, and at this point I’m leaning against (voting for) it,” said one, Rep. Andy Harris, R-Md.
I don’t think that democracy would dictate avoiding, but engaging with that argument about civil liberties and the so-called war on terror. Julian Sanchez entered that debate with this paper on leashing the surveillance state.
Congress recently approved a temporary extension of three controversial surveillance provisions of the USA Patriot Act and successor legislation, which had previously been set to expire at the end of February. In the coming weeks, lawmakers have an opportunity to review the sweeping expansion of domestic counter-terror powers since 9/11 and, with the benefit of a decade’s perspective, strengthen crucial civil-liberties safeguards without unduly burdening legitimate intelligence gathering. Two of the provisions slated for sunset — roving wiretap authority and the socalled “Section 215″ orders for the production of records — should be narrowed to mitigate the risk of overcollection of sensitive information about innocent Americans. A third — authority to employ the broad investigative powers of the Foreign Intelligence Surveillance Act against “lone wolf” suspects who lack ties to any foreign terror group — does not appear to be necessary at all.
More urgent than any of these, however, is the need to review and substantially modify the statutes authorizing the Federal Bureau of Investigation to secretly demand records, without any prior court approval, using National Security Letters. Though not slated to sunset with the other three Patriot provisions, NSLs were the focus of multiple proposed legislative reforms during the 2009 reauthorization debates, and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconstitutional, and the government’s own internal audits have uncovered widespread, systematic misuse of expanded NSL powers. Congress should resist recent Justice Department pressure to further broaden the scope of NSL authority — and, indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertain constitutional status of NSLs, a sunset should be imposed along with more robust reporting and oversight requirements.
But we’re not going to get this debate. Pat Leahy might offer a couple amendments, which will get shot down. And the surveillance state will not be leashed, but will grow, with little room for dissent.
UPDATE: Here’s reaction from the Bill of Rights Defense Committee:
That is how the PATRIOT Act first came into being 10 years ago—without meaningful debate. Today, despite the prior approval of the Senate Judiciary Committee of a bill introduced by Senator Patrick Leahy (D-VT) to impose some (albeit inadequate) reforms, the congressional leadership is dictating the result of a long overdue policy debate that has never happened.
Congress has a constitutional responsibility to check and balance the Executive Branch, but has failed that responsibility dramatically. Today’s news demonstrates a spectacular bipartisan failure by our nation’s political leaders, who have yet again proven their ignorance of the constitutional principles they have sworn to defend.