Friday, October 16, 2009

Judiciary Committee Votes to Renew Nearly All of Patriot Act Provisions

I realize this news is about a week old, but I want to at least update everybody regarding the EXTREMELY disappointing vote in the Senate Judiciary Committee that essentially renewed nearly every Constitution crushing component of the Patriot Act (that were up for renewal). As I will note, there were a few very small improvements that in reality were so minuscule, the bill as a whole was still not worth supporting.

Today, I especially want to provide a few long citations from two of today's real privacy heroes in this country: Senator Russ Feingold and Constitutional scholar Glenn Greenwald. I'll also include a few short comments from the ACLU and the Electronic Frontier Foundation (EFF) - two organizations that have been out front on this issue since the inception of the Patriot Act.

The Judiciary Vote

For some of my past posts on this debate in the Judiciary Committee, click here for more about Feingold's Justice Act, click here for more about Obama's broken promises on this issue, click here for my discussion of the "sneak and peak" provision, and click here for more on the "Lone Wolf" provision.

Before I get to the remarks by Senator Feingold,'s Glenn Greenwald, the ACLU and EFF, here's a brief summation - largely based on an article describing these events in Wired Magazine last week - of the truly disastrous performance by the Senate Judiciary Committee.

Essentially, the Senate committee forwarded legislation to the full Senate that reauthorizes three expiring provisions of the Patriot Act adopted just after the 2001 attacks on the World Trade Center. The measures greatly expanded the government’s ability to spy on Americans in the name of national security.

The 11-8 vote by the Senate Judiciary Committee came as lawmakers hurredly tried to beat a looming deadline. The three provisions expire at year’s end, unless renewed.

Though Senators Feingold and Durbin put up an admirable fight on a variety of fronts, the committee approved allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation. A proposal that would put limits on such requests was defeated.

No vote date for either body has been set. Members also renewed the so-called “roving wiretap” provision, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

Finally, the committee renewed the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

A Feingold measure (.pdf) to allow that provision to expire was defeated.

Feingold did not submit his amendment to withdraw the immunity Congress granted to the nation’s telecommunications companies last year, one that shields the companies from lawsuits accusing them of funneling Americans’ electronic communications to the National Security Agency without warrants.

With limited exceptions, the committee-approved measure largely resembles existing law. However, one change requires publication of audits, including how many times the government has used the Patriot Act’s provisions, including the number of targets. Much of the government’s public reporting on the topic has been voluntary, and very little is known about how often each power has been used and why.

Another change centered on library records. In order to obtain warrants for them from the FISA court, the new plan requires a tangential connection to a terror investigation or foreign power. The expiring version does not.

With that flurry of heartbreaking news, let's get to reactions.

From Senator Russ Feingold's "diary":

At the beginning of the year, I had high hopes for the Patriot Act reauthorization process. We had just elected a President with a strong civil liberties record in the Senate. His Attorney General had supported some reforms during consideration of the last reauthorization bill in 2005. And Democrats controlled the Senate by such a large margin that our advantage on the Judiciary Committee ended up at 12-7 after Sen. Specter switched parties. Even as recently as 10 days ago, I hoped to be able to support a reauthorization bill introduced by Sen. Leahy that, while narrower than the JUSTICE Act that Senator Durbin and I have championed, did contain several important and necessary protections for the privacy of innocent Americans.

Events over the past two weeks dashed those hopes. Over the course of two business meetings, Sen. Leahy’s bill was diluted to the point that I had to vote against it. It falls well short of what the Congress must do to correct the problems with the Patriot Act.

...Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department. Keeping Americans safe is everyone’s priority. But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms.

Protecting the rights of innocent people should be a part of that equation. It's not the Prosecutors’ Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms.

I am also very troubled that administration officials have been taking positions behind closed doors that they are not taking publicly. I am pleased that we have not heard the type of public fear-mongering from this administration that was such a regular part of the discourse in the past. But if the administration wanted to further water down the already limited reforms in the bill that was on the table, they should have said so openly. Instead, at our only public hearing we were told that the Justice Department did not have positions on the crucial issues about to be discussed.

Then, over the past week, in classified settings, the Department has weighed in against even some of the limited reforms that Sen. Leahy originally proposed. That led to the unusual spectacle today where many members of the committee based their decision to further weaken the bill on a classified briefing held yesterday, but could not fully discuss or debate their reasons. As a member of the Senate Intelligence Committee, I am privy to every bit of the classified information that was referred to today. And nothing presented in the classified briefings justifies the failure to address the real problems with the expiring Patriot Act provisions and other intrusive powers.

Perhaps the most important was the failure to include the reasonable 3-part standard for issuing a FISA business records order under Section 215 of the PATRIOT Act. This standard was in a bill unanimously reported by the Committee, under Republican control, in 2005, and it was in Sen. Leahy’s original bill this year. Last week, Senator Durbin offered an amendment to put the standard back in the bill. It would have ensured that these secret authorities can only be directed at individuals who have some connection to terrorism or espionage. The standard is broad and flexible, but it places some limits on this otherwise very sweeping authority.

Unfortunately, Senator Durbin’s amendment failed. When it did, I hoped the Committee would instead consider at least adopting that same standard for issuing National Security Letters, which are not approved by any court, and which were seriously abused by the FBI. Today, that, too, was rejected.

The bill that passed out of committee did include some positive changes. I was pleased my amendment to reform invasive "sneak and peek" searches was included, as well as my amendment to require the executive branch to issue minimization procedures for NSLs. But these improvements did not make up for the bill’s shortcomings, and I was unable to support it on the final vote.

I appreciate Chairman Leahy’s efforts to achieve a compromise. And I hope to work with him and other members of this committee to make further improvements as this bill goes forward. In the end, however, Democrats have to decide if they are going to stand up for the rights of the American people or allow the FBI to write our laws. For me, that’s not a difficult choice.

Now to Glenn Greenwald's comment:

That's the record which a historian, wedded as faithfully as possible to a narration of indisputable facts, would be compelled to write. And those are just disclosure and transparency issues. None of that has nothing to do with ongoing assertion of detention powers, habeas corpus denials, renditions, the Democrats' active efforts just this week to prevent abuses of the Patriot Act and FISA, etc. (for those with Twitter, just read Marcy Wheeler's infuriating account from the last two hours of how key Democrats in the Senate -- led by Dianne Feinstein and Pat Leahy -- just gutted virtually every effort to rein in Patriot Act and FISA abuses that were sponsored by Feingold, Durbin and even Arlen Specter: ZAZI!!!).


The administration loves to posture in public as though they support various reforms -- to lead their wild-eyed supporters to believe they do -- only to work in secret to gut those same reforms....Feingold ended up having to vote against the new Patriot Act bill that he spent all year leading because it was diluted to the point where very little was fixed and some things were actually made worse. When it comes to transparency and civil liberties, that's what the Democratic Congress and White House are. If the record I documented here isn't enough to see that, then take it from someone who sees them up close and personal every day.

The American Civil Liberties Union was similarly disappointed, and Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, stated:

"We are disappointed that further changes were not made to ensure Americans’ civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportunity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans’ Fourth Amendment rights. The meager improvements made during this markup will certainly be overshadowed by allowing so many horrible amendments to be added to an already weak bill. Congress cannot continue to make this mistake with the Patriot Act again and again. We urge the Senate to adopt amendments on the floor that will bring this bill in line with the Constitution."

Kevin Bankston, the Electronic Frontier Foundation’s senior attorney specializing in free speech and privacy law, stated:

We’re deeply disappointed that the Obama administration sided with the committee Republicans to pass amendments to remove reforms from the already watered-down bill.”

He's referring to seven amendments, five of which were introduced by Senator Jeff Sessions, which removed civil liberties protections and which Sessions said were mostly recommended by the Obama administration’s FBI and Justice Department in closed-door classified briefings.

“We’re very disappointed in the final bill that was voted out of committee. It has fewer reforms than the original bill from Sen. Leahy, and it’s a very far cry from Sen. Feingold and Durbin’s JUSTICE Act.”

The JUSTICE Act would have required the government to specify more clearly the targets of their investigations and their connections to terrorism, to keep the FBI from using its authority to engage in broad-based data-mining of Americans’ phone, library and business records.

Bankston continued: “In 2005, the Judiciary Committee was able to pass much stronger reforms under a Republican administration. Now, in a position of power and with a vaunted supermajority, the Democrats are still bargaining against themselves rather than having a united front and introducing new civil liberties protections. I think it’s because of the White House’s position that these powers need to be renewed. There’s an unwillingness to consider even minor reforms.”

I'll be watching how this all develops now on the House and Senate floors.

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