Brennan Center for Justice

Undermining the
protection of civil liberties. Cutting back on congressional oversight.
Allowing the FBI to spy on Americans at its discretion based on broad claims
about national security needs. Sound like a Bush-era congressional
session? In fact, this was the tone that
underlaid the debate in a recent Senate Judiciary Committee meeting as they considered a bill
to reauthorize several expiring provisions of the USA PATRIOT Act ("Patriot
Act"). Senators who had unanimously supported a reauthorization bill in 2005
(that added restrictions to the powers granted in the original Act), now
unquestioningly caved to the Obama Administration's demands to limit any
additional safeguards, approving legislation that they would have deemed
unjustly deferential just a few years ago. In doing so, they prioritized
partisanship and politicking over the civil liberties of Americans.

The
first blow came when Chairman Leahy introduced his and Senator Feinstein's bill
for the reauthorization of the expiring provisions. It was a compromise measure substituted for
the bill that Sen. Leahy had originally proposed, which significantly cut back
on the privacy and civil liberties protections of that original Leahy bill. A
week later, the Committee continued the trend by rejecting a number of
important amendments proposed by Senator Feingold and others, which would have
reformed several aspects of the original Patriot Act to provide much needed
privacy protections as well as increased congressional oversight. With senators from both sides of the aisle
praising each other for their efforts at compromise and collegiality, the
Committee approved the USA PATRIOT Act Extension Act of 2009. 

Failed Privacy Measures

One amendment
rejected by the Committee concerned Section 215 orders, which allow the FBI to
obtain "any tangible thing"--often business records, which could include sensitive
information such as bookstore and other commercial purchase records, medical
records, genetic records, insurance records, travel records, etc.--related to a
terrorism investigation. Sen. Feingold
challenged the persuasiveness of arguments secretly offered by the Obama
Administration to lobby for a more permissive standard for obtaining these
records, and called for critical information to be unclassified so that
Congress and the American people could make informed decisions about how to
protect both their own privacy and security in this area. Unfortunately, this
call was ignored, and the Committee steamrolled the bill through on the
Administration's terms: Under Section 215, the government need not even show
that the records being obtained relate to a suspected terrorist or spy, someone
known to a suspected terrorist or spy, or the activities of a suspected
terrorist or spy. The government now need only make a
statement supporting its belief that the records have some "relevance" to a terrorism investigation,
a standard that is so loose as to be meaningless. The bill similarly failed to include
meaningful reform of the other two expiring provisions.

Senators
Feingold and Durbin had attempted to provoke a wider discussion of
counterterrorism powers, challenging Congress to seriously debate the results
of the often hasty expansion of surveillance authorities following 9/11. They
introduced the JUSTICE Act, which proposed a variety of safeguards designed to
protect Americans' records, homes, and communications against the expansive
capacities granted governmental authorities under the Patriot Act, the FISA
Amendments Act and other surveillance provisions. Such reforms would not only protect
Americans' privacy and civil liberties, but would also likely enhance the
government's ability to target terrorists. 
Ensuring that investigative efforts are actually focused on suspicious
activities and individuals will be more effective than casting an overly broad
net that collects private information on innocent citizens with no ties to
criminal pursuits.  But the Committee
declined to use this opportunity to reassess the necessity and appropriateness
of these broad powers, and instead limited its discussion to the expiring
provisions, which it renewed largely unchanged.

Positive Changes 

The
bill approved by the Committee did include some positive developments.
Cognizant of the FBI Inspector General's reports documenting extensive abuse of
National Security Letters (NSLs - a type of administrative subpoena used to
obtain information without a warrant), the Committee opted to impose an end to
this power, ensuring some congressional review of NSL use in the near future.
It also approved an amendment requiring the Attorney General to adopt
minimization procedures, which limit the use and dissemination of incidentally-acquired, irrelevant personal information, for the information obtained through
NSLs. These small steps toward curbing possible abuse of NSLs are all the more
necessary -- as the Committee rejected inserting into the bill a more restrictive
standard for their use.

Another
constructive amendment reduces from 30 days to 7 days the time limit for
notifying a person that he or she has been subject to "sneak and peak" search, a
covert search in which the subject has no advance or contemporaneous notice of
the search's occurrence. These provisions will ensure greater privacy
protections without inhibiting the government's ability to effectively carry
out terrorism investigations.

The
past misuse of NSLs by the FBI is attributable at least in part to the overly
expansive powers granted in the Patriot Act. It is the responsibility of
Congress to provide appropriate checks on the executive branch. Stricter
standards are needed to ensure that the government does not abuse its authority
and that invasive practices are used only in cases when there is already a link with
suspected terrorist activity.

In rejecting essential reforms like those
proposed by the JUSTICE Act to curtail abuses of constitutional rights since 9/11, the Senate Judiciary Committee missed a crucial
opportunity to protect civil liberties, and once again extended broad powers to
the Administration in return for limited transparency and inadequate
constraints on executive power.