The USA Patriot Act, major parts of which have to be reauthorized by Congress before the end of the year, has run into unexpected trouble, with both Democrats and some Republicans balking on conceding powers desired by the White House.
The act was originally passed by a large majority of the House, and only one “no” vote in the Senate (Feingold, D-Wis.), on Oct. 26, 2001, with no public input and very little congressional debate. The anger generated by 9/11 and the fear arising from the subsequent anthrax scare made it possible for the Bush administration to ram through what civil libertarians immediately denounced as a nightmarish threat to constitutional rights.
Some of the most dangerous aspects of the Patriot Act, including its extreme broadening of the legal definition of terrorism and its criminalization of certain kinds of association, do not have “sunset” or expiration provisions. They remain in force indefinitely. Other parts of the act, most of which give the government greatly widened powers of surveillance, are set to sunset this year unless they are reauthorized by Congress.
Both the government and its opponents took advantage of the debate to try to modify the law. The government tried to make permanent the sunsetted provisions and add more repressive powers. Civil libertarians attempted to increase some constitutional safeguards (such as making the government tell you within seven days if they have executed a secret search of your home or office) and continue the sunsetting provisions.
The House and Senate passed very different versions of the re-authorization bill earlier this year. The House made many more concessions to the president, while the Senate version, while hardly a civil libertarian’s dream, did add a few safeguards.
For example, in the Senate version the famous Section 215 “library search” provision, which involves other kinds of records also, would be allowed only if the person whose records are requested is suspected, as an individual, of involvement with terrorism, but in the House version would be available to investigate anybody if the matter was “relevant” to a terrorism investigation, whether the individual under surveillance was suspected of doing anything wrong or not.
The Senate version would have sunsetted some provisions in four years, but the House version would only have sunsetted them in 10 years.
The two contrasting version were then referred to a joint House-Senate Conference Committee to come up with a final version. Civil libertarian organizations such as the ACLU and the Bill of Rights Defense Committee put out the word to try to get the Conference Committee, and then the whole of both houses of Congress, to approve the Senate version and not the House one. The committee came up with a rotten compromise: Sunsetting was included for some aspects of the act, but for seven years instead of four. There were no very substantial new protections for civil liberties in the Conference version.
To the amazement of many, there was a mid-November rebellion in both houses, including Democrats and Republicans, against the report of the Conference Committee.
Major Republican figures such as Senate Judiciary Committee chairman Arlen Specter (R-Pa.) joined liberal Democrats such as Sen. Richard Durbin (D-Ill.) and Vermont independent Rep. Bernie Sanders in repudiating the version produced by the Conference Committee because it did not go far enough in protecting civil liberties. They demand a reversion to the four-year sunsetting and other guarantees, and are even threatening a filibuster.
Why this bipartisan rebellion? The administration’s position on all matters related to civil liberties has been weakened by wide public debate about government abuses. The issue of torture, of secret prisons in other countries to which the U.S. government sends prisoners, the 30,000 “National Security Letters” which the Bush administration has been issuing yearly since the passage of the Patriot Act to investigate U.S. citizens and residents without their knowing it — all of these things are in the headlines every day.
Furthermore, the work that has been done at the grassroots by the many local organizations linked to the Bill of Rights Defense Committee in Northampton, Mass., has had the result that nearly 400 communities, including seven state legislatures and all the largest cities, have passed resolutions denouncing the Patriot Act.
More grassroots pressure on Congress is needed now. The rebellion in the House and Senate stopped the re-authorization of the act until after Thanksgiving. The administration has stated that this is a priority when Congress reconvenes on Dec. 12 and before the Christmas break, because the originally sunsetted provisions of the act would lapse otherwise.