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.
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.