Trouble Ahead for Patriot Act Reauthorization

On December 31, 2009, these provisions will expire (except for investigations that began or potential offenses which took place before that date) unless these sections are extended. The bill H.R. 1467 would extend these provisions until December 31, 2019.

The “lone wolf” provision is designed to deal with people like  Zacaria Moussaoui (the so-called "20th hijacker" in the 9/11 plot). Under existing law at the time he was arrested, we were unable  to search his laptop despite suspicions he was a terrorist. This provision has been extended once already -- in 2005.

Section 206 was amended on three occasions, largely but not exclusively to make it easier to surveil those trying to use new technologies to thwart detection. Section 215 expanded the normal definition of business records and allowed “any tangible things” to be subject to "compulsory production." It broadly defined which material was considered relevant and strictly limited to whom disclosure of the production could be made. Finally, it set stringent restrictions on judicial review of both production and nondisclosure orders.

It is necessary, of course, to keep a sharp eye on such legislation and its enforcement to assure that while the needs of  homeland security are met, our civil liberties are not unduly encroached. One needn’t be a paranoid liberal to imagine Dick Cheney listening in to your conversations with your butcher to understand this point. But it is also true that the operations of the Patriot Act and FISA have been closely monitored from the outset.

Like any legislation, careful review from time to time is worthwhile and needed changes should be considered. But as one of its authors, Professor Nathan A Sales, has argued, there is no evidence that it is broken and even the known abuses seem trivial compared to its efficacy:

In March 2007, an internal Justice Department audit found that the FBI had misused its power under the Patriot Act to gain access to terrorism suspects' telephone records. And newspapers have reported that relatively minor in-flight disturbances have led to passengers facing federal charges of interfering with flight crew. Abuses like these are not to be taken lightly.

But the solution is not to neuter the Patriot Act. The act remains a vital weapon in the struggle against global terrorism.

Perhaps the best way to ensure that the act remains faithful to fundamental American values is to insist on greater transparency and oversight: More hearings on Capitol Hill; more audits; and, above all, more disclosures to the public.

Policymakers in the new administration and in Congress – and ordinary Americans like us – should keep tabs on counterterrorism agents to see that they don't abuse the powers they've been given. But we also need to make sure agents keep the tools they need to get the job done. Al-Qaeda hasn't given up and neither should we.

Whether the proposed amendments by Senator Feingold and others is a serious effort at reform remains to be seen. Given the late date in the legislative term, the near expiration of the sunsetting provisions, and the already overwhelming legislative agenda in Congress, one has to wonder if the administration really is holding open the door on revising the Patriot Act -- especially since it already has scared so many citizens with its incompetence and overreaching.

During Wednesday’s hearings, watch Senator Feinstein. She is a grownup when it comes to our national security. She also sits on both the judiciary and intelligence committees. Her attitude will give us clues as to how this situation will play out. Watch the Republicans on the committee as well to see if some or all don’t suggest that it’s time to stop extending these provisions for relatively short periods of time and make them permanent parts of the legislation.