No Time to Debate Patriot
Back in February, Democratic leader Harry Reid promised fellow senator Rand Paul that—after years of kicking the can down the road—there would be at least a week reserved for full and open debate over three controversial provisions of the Patriot Act slated to expire this weekend, with an opportunity to propose reforms and offer amendments to any reauthorization bill. And since, as we know, politicians always keep their promises, we can look forward to a robust and enlightening discussion of how to modify the Patriot Act to better safeguard civil liberties without sacrificing our counterterror capabilities.
Ha! No, I’m joking, of course. Having already cut the legs out from under his own party’s reformers by making a deal with GOP leaders for a four-year extension without reform, Reid used some clever procedural maneuvering to circumvent Rand Paul’s pledged obstruction, slipping the Patriot extension into an unrelated small-business bill that’s privileged against filibusters. All this just to prevent any debate on amendments—the most prominent of which, the Leahy-Paul amendment, is frankly so mild that it ought to be uncontroversial. (Among other things, it modifies some portions of the statute already found constitutionally defective by the courts, and codifies some recordkeeping and data use guidelines the Justice Department has already agreed to implement voluntarily.) Apparently it’s too much to even allow these proposals to be debated and voted on.
One reason may be that a growing number of senators—most recently Ron Wyden and Mark Udall—have been raising concerns about a classified “sensitive collection program” that makes use of the sunsetting “business records provision,” also known as Section 215. They’ve joined Dick Durbin and (former Senator) Russ Feingold in hinting that there may be abuses linked to this program the public is unaware of, and that, moreover, the secret Foreign Intelligence Surveillance Court has interpreted this provision (in a classified ruling, of course) in a way that the general public would find surprising, and which goes beyond the law’s apparent intent. Intelligence operations, of course, must remain secret, but this means we are now governed by a body of secret law, potentially at odds with citizens’ understanding of the public statute—with the result that we cannot even know the true reason that common sense reforms, once endorsed unanimously by the Senate Judiciary Committee, cannot be adopted. This is—to put it very mildly—not how a democracy is supposed to function. Equally troubling, there’s strong circumstantial evidence (which I’ll outline in a separate post) that the program in question may involve large-scale cell phone location tracking and data mining—a conclusion shared by several other analysts who’ve followed the issue closely.
The one silver lining here is that, while press may not have the patience for a complicated policy debate involving byzantine intelligence law—especially now that many Democrats have decided that powers which raised the specter of tyranny under George W. Bush are unobjectionable under an Obama administration—they are always happy to cover a legislative boxing match. Perhaps, thanks to Sen. Paul’s intransigence, we’ll finally see a little sunlight shed on these potent and secret surveillance powers.
Good News and Bad on PATRIOT Reform
Late last week, Attorney General Eric Holder sent a letter to Senate Judiciary Committee Chair Patrick Leahy (D-VT) in which he agreed to implement an array of policies designed to check abuse of USA PATRIOT Act powers. These include more thorough record keeping and more disclosures to Congress, prompt notification of telecommunications companies when gag orders have expired, and updated retention and dissemination procedures to govern the vast quantities of information obtained using National Security Letters.
In itself, this is all to the good. But civil libertarians should pause before popping the champagne corks. Last year, the fight over the reauthorization of several expiring PATRIOT provisions opened the door to the comprehensive reform that sweeping legislation sorely needs to better balance the legitimate needs of intelligence and law enforcement against the privacy and freedom of Americans. Despite serious abuses of PATRIOT powers uncovered by the Justice Department’s Office of the Inspector General, no such major changes were made. Instead, Congress opted for a shorter-term renewal that will require another reauthorization this February—in theory allowing for the question of broader reform to be revisited in the coming months.
Many of the milder reforms proposed during the last reauthorization debate now appear to have been voluntarily adopted by Holder. Unfortunately, this may make it politically easier for legislators to push ahead with a straight reauthorization that avoids locking in those reforms via binding statutory language—and entirely bypasses the vital discussion we should be having about a more comprehensive overhaul. If that happens, it will serve to confirm the thesis of Chris Mooney’s 2004 piece in Legal Affairs, which persuasively argued that “sunset” provisions, far from serving as an effective check on expansion of government power, often make radical “temporary” measures more politically palatable, only to create a kind of policy inertia that makes it highly unlikely those measures will ever be allowed to expire.
With the loss of Sen. Russ Feingold (D-WI), who whatever his other faults has been the Senate’s most vocal opponent of our metastasizing surveillance state, the prospects for placing more than cosmetic limits on the sweeping powers granted since 2001 appear to have dimmed. If there’s any cause for optimism, it’s that the recent fuss over intrusive TSA screening procedures appear to have reminded some conservatives that they used to believe in limits on government power even when that power was deployed in the name of fighting terrorism.
Democracy Will Survive Citizens United
At Politico Arena, today’s focus is on the Court and campaign finance.
My comment:
The FISA Amendments: Behind the Scenes
I’ve been poring over the trove of documents the Electronic Frontier Foundation has obtained detailing the long process by which the FISA Amendments Act—which substantially expanded executive power to conduct sweeping surveillance with little oversight—was hammered out between Hill staffers and lawyers at the Department of Justice and intelligence agencies. The really interesting stuff, of course, is mostly redacted, and I’m only partway though the stacks, but there are a few interesting tidbits so far.
As Wired has already reported, one e-mail shows Bush officials feared that if the attorney general was given too much discretion over retroactive immunity for telecoms that aided in warrantless wiretapping, the next administration might refuse to provide it.
A couple other things stuck out for me. First, while it’s possible they’ve been released before and simply not crossed my desk, there are a series of position papers — so rife with underlining that they look like some breathless magazine subscription pitch — circulated to Congress explaining the Bush administration’s opposition to various proposed amendments to the FAA. Among these was a proposal by Sen. Russ Feingold (D-WI) that would have barred “bulk collection” of international traffic and required that the broad new intelligence authorizations specify (though not necessarily by name) individual targets. The idea here was that if there were particular suspected terrorists (for instance) being monitored overseas, it would be fine to keep monitoring their communications if they began talking with Americans without pausing to get a full-blown warrant — but you didn’t want to give NSA carte blanche to just indiscriminately sweep in traffic between the U.S. and anyone abroad. The position paper included in these documents is more explicit than the others that I’ve seen about the motive for objecting to the bulk collection amendment. Which was, predictably, that they wanted to do bulk collection:
- It also would prevent the intelligence community from conducting the types of intelligence collection necessary to track terrorits and develop new targets.
- For example, this amendment could prevent the intelligence community from targeting a particular group of buildings or a geographic area abroad to collect foreign intelligence prior to operations by our armed forces.
So to be clear: Contra the rhetoric we heard at the time, the concern was not simply that NSA would be able to keep monitoring a suspected terrorist when he began calling up Americans. It was to permit the “targeting” of entire regions, scooping all communications between the United States and the chosen area.
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