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Conventional Wisdom on the Patriot Act

Conventional wisdom took a hit yesterday as 26 Republicans broke rank in the House to help defeat the reauthorization of three expiring Patriot Act provisions.

February 9, 2011

Conventional wisdom took a hit yesterday as 26 Republicans broke rank in the House to help defeat the reauthorization of three expiring Patriot Act provisions. Like Guantánamo, the Patriot Act was once generally understood to be a symbol of government overreaching in the so-called “war on terror”—and, also like Guantánamo, it underwent an improbable rehabilitation at the hands of the conservative spin machine. It was widely expected to garner the necessary two-thirds majority in the House. But something happened to derail that train.

According to the new conventional wisdom, the Tea Party is what happened. The Washington Post describes the vote as “the first small uprising of the party’s tea-party bloc.” The Washington Times dispensed with such nuance, describing it as a Tea Party “revolt.”

But is that really a fair assessment? Certainly, if the Tea Party means what it says about limited government and fidelity to the Constitution, it should be against a straight reauthorization of these provisions. The so-called “library records provision” allows the FBI to obtain “any tangible thing” from a third party (library records have become the provision’s poster child) by merely attesting to a secret court that the item is “relevant” to an ongoing terrorism investigation. Under the “roving wiretap” provision, the government can get a secret court order to wiretap an unlimited number of communications devices a suspect may be using, without identifying the devices or even the suspect to the court. And the so-called “lone wolf” provision amends the statutory definition of “agent of a foreign power” to include people who are nothing of the kind. (The Brennan Center’s Emily Berman has said more about these problems in the pages of Roll Call.)

But it’s not clear whether the Tea Party has in fact gotten the memo. As Adam Serwer blogs on the Washington Post, 26 Republicans voted against reauthorization—but there are 52 members of the Republican Tea Party Caucus, most of whom voted for reauthorization. Only eight freshmen members voted no. That’s hardly a “revolt.”

Call me a glass-half-empty kind of person, but the real story behind last night’s vote is who voted for the reauthorization. If the Republicans appeared divided, the Democrats were even more so, with 67 voting yes and 122 voting no. That’s not a surprise, but it’s not good news, either, since Republicans can bring the legislation back to the floor under different rules that require only a majority vote.

And these pro-Patriot Act Democrats will have plenty of company in the Senate and the White House. Senator Leahy introduced a version of the reauthorization containing somewhat enhanced civil liberties protections, but in Serwer’s words, “those modest reforms were too much for Sen. Dianne Feinstein (D-Calif.), so she introduced an alternate bill without them.” And in a repeat performance of the late 2009 reauthorization debates, the Obama administration has determined that we can’t afford civil liberties and is supporting reauthorization—albeit with a 2013 sunset. So despite the initially encouraging vote last night, it seems we may be stuck with the Patriot Act for a while longer.

Does anyone else miss Senator Feingold?