Trouble Ahead for Patriot Act Reauthorization

Mention the Patriot Act or FISA (Foreign Intelligence Surveillance Act) and you can be assured of more posturing than you’ll find on the runway in Milan during fashion week. I do not know what to make of Senator Russ Feingold’s effort to amend the surveillance law as it comes up for extension or of the president’s support for extending the expiring portions of the legislation as written.

Following 9/11, a bipartisan Congress overwhelmingly approved the passage of the Patriot Act to make it easier to prevent terrorism by disrupting terrorist threats and capturing terrorists before they struck. The tweaks to existing law were relatively minor. Oversight of the law has been continual. Abuses have been relatively minor, quickly noticed, and reported.

Yet as soon as the public memory of that horrible day dissipated, the left began painting the Patriot Act as a major intrusion on civil liberties, doing everything possible to limit its reach and undercut its efficacy.

From Senator Russ Feingold's website:

Thursday, Senator Feingold (D.,Wis), joined by Senators Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR)  announced that they had introduced legislation “to fix problems with surveillance laws that threaten the rights and liberties of American citizens. “

President Obama, on the other hand,  says he supports extending the expiring portions of the surveillance act, but as you might expect from such an experienced equivocator, he left himself considerable wiggle room:

Lawmakers and civil rights groups had been pressing the Democratic administration to say whether it wants to preserve the post-Sept. 11 law's authority to access business records, as well as monitor so-called "lone wolf" terrorists and conduct roving wiretaps.

The provision on business records was long criticized by rights groups as giving the government access to citizens' library records, and a coalition of liberal and conservative groups complained that the Patriot Act gives the government too much authority to snoop into Americans' private lives.

As a presidential candidate, Barack Obama said he would take a close look at the law, based on his past expertise in constitutional law. Back in May, President Obama said legal institutions must be updated to deal with the threat of terrorism, but in a way that preserves the rule of law and accountability.

In a letter to lawmakers, Justice Department officials said the administration supports extending the three expiring provisions of the law, although they are willing to consider additional privacy protections as long as they don't weaken the effectiveness of the law.

On Wednesday, the Senate Judiciary Committee will be considering whether to extend certain provisions of the surveillance statute. It will be calling several witnesses to testify including David Kris, assistant attorney general for national security; Glenn Fine, inspector general of the U.S. Department of Justice; and a number of non-government witnesses including Kenneth l. Wainstein, a partner at O’Melveny & Myers who, in the previous administration, served as a U.S. attorney and assistant attorney general for national security.

A few months ago Edward C. Liu, legislative attorney for the Congressional Research Service, a department of the Library of Congress, prepared  a review of the expiring provisions.

Three Sections of FISA sunset on December 31, 2019. Liu explains:

Section 6001(a)Intelligence Reform and Protection Act (the so-called “Lone Wolf” provision )which permits surveillance of non-US persons “engaged in international terrorism, without requiring evidence linking those persons to an identifiable foreign power or terrorist organization.”

Section 206 of the Patriot Act amended FISA to permit “multipoint, or ‘roving’ wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified.”

Section 215 of the Patriot Act “enlarged the scope of documents that could be sought under FISA, and lowered the standard requires of a court order compelling the production of documents.”