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.”

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.