September 24, 2009 | By Kevin Bankston

PATRIOT Debate Round-Up: Dems Press Obama for Reforms; Leahy Bill a Good Start But Doesn't Stack Up to Last Week's JUSTICE Bill

Following last week's introduction by Senators Feingold and Durbin of the JUSTICE Act bill, the debate over renewal and reform of the USA PATRIOT Act kicked into over-drive this week with a second bill introduced in the Senate and hearings in both the House and Senate. The week's events were foreshadowed by the New York Times' weekend headline, "Battle Looms Over the Patriot Act".

The fireworks started on Tuesday with a hearing in the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, to consider whether the PATRIOT provisions set to expire at the end of the year should be renewed. Representative Nadler, chairman of the subcommittee and a key proponent of PATRIOT reform in the past, kicked off the hearing with a clear statement that Congress should not limit itself to considering the expiring PATRIOT provisions but instead should broadly consider reforms to the entire Act: "I believe that we should not miss the opportunity to review the Act in its entirety, to examine how it is working, where it has been successful, and where it may need improvement." Meanwhile, Judiciary Committee Chairman Conyers highlighted how the Bush administration originally rammed the PATRIOT Act through Congress in the fearful days after 9/11, and echoed the disappointment of EFF and other civil libertarians at President Obama's support for full renewal of all three expiring PATRIOT provisions. He likened the administration's hearing witnesses to those of the Bush administration before it: "You sound like a lot of people from DOJ that have come over here before, and yet you've only been there a few months...."

The overall theme in the reporting on the hearing was House Democrats' desire for broad reform of PATRIOT, and their frustration at the Obama administration's unwillingness to say whether it would oppose or support such reforms. The Associated Press wrote that "Liberals on the House Judiciary Committee were left unsatisfied, clearly wanting the administration to go further and pledge to curb what they consider abuses of the Bush administration." As a Washington Independent headline announced, "Democrats [Are] Not Falling in Line Behind White House".

Disappointingly, the clear demand for broad PATRIOT reform by House Democrats on Tuesday was somewhat undermined that same day in the Senate, when Senator Leahy, chairman of the Senate Judiciary Committee, introduced his own PATRIOT renewal and reform bill (the "USA PATRIOT Act Sunset Extension Act"), cosponsored by Senators Cardin and Kaufman. On one hand, Leahy's bill does contain some key reforms to the FBI's National Security Letter authority and to PATRIOT section 215's authorization of FISA court orders for business records (an expiring section that the bill would renew). On the other hand, it fails to reform the two other expiring PATRIOT provisions, which authorize "John Doe" roving wiretaps and "lone wolf" wiretapping of suspects without any connection to foreign governments or terrorist organizations.

Most disappointingly, the Leahy bill does not attempt to reform last summer's FISA Amendments Act (FAA) in any way. The JUSTICE Act, in contrast, would introduce robust new privacy protections for Americans' communications while repealing the FAA's grant of immunity to telecoms that broke the law by assisting in the National Security Agency's warrantless wiretapping program. With all due respect to Senator Leahy, who has long fought for civil liberties reforms to PATRIOT and was a key ally in last summer's legislative battles over the FAA, we agree with the evaluation of his bill by our friends at the ACLU: it's a nice start, but the JUSTICE Act is the superior bill. Making sure that reforms from JUSTICE are inserted into the Leahy bill as amendments when the committee "marks up" the Leahy bill next Thursday is now job one for supporters of PATRIOT and FAA reform. Expect an EFF action alert shortly.

Following the introduction of his bill on Tuesday, Leahy convened the full Senate Judiciary Committee for its own hearing on PATRIOT reform and renewal on Wednesday. As with the House hearing the day before, it was clear that Democrats in the Senate aren't happy with the Obama administration's failure to strongly support the creation of new civil liberties protections against government spying. The Huffington Post reported "Democrats Spar With Obama DOJ Over PATRIOT Act," while the Washington Post wrote that "Democrats Seek to Tighten Oversight of Surveillance Methods." In a story headlined "Lawmakers Press for Civil-Liberty Guarantee", the Associated Press wrote, "The Obama administration, for the second straight day, frustrated Democratic lawmakers yesterday by declining to say whether it backed their demands for more civil-liberties safeguards in antiterrorism surveillance...."

One particularly heartening highlight from the Senate hearing was Senator Feingold's grilling of the DOJ witness David Kris on why PATRIOT's provision authorizing "sneak and peak" search warrants, which was sold to the American public based on fears of terrorism, is mostly being used in drug investigations. Another was Senator Franken's reading of the Fourth Amendment to Kris to make the point that the John Doe roving wiretap authority is constitutionally dubious (The video is available here, with Franken's questions starting at 94:32).

Finally, as the PATRIOT debate has begun to boil in Congress, editorials calling for PATRIOT reform are starting to appear in newspapers and online, here, here, and here. Hopefully we'll see the major papers begin to weigh in this weekend, before the relevant committees begin debating specific changes to the law next week. We call on those editorial boards (we're looking at you, Washington Post and New York Times) to stand firmly behind the reforms offered in the JUSTICE bill.

This week's events have made one thing perfectly clear: Congressional Democrats don't intend to rubber-stamp PATRIOT renewal. Now is an important opportunity for meaningful surveillance reform, so stay tuned to Deep Links for updates and action alerts as the debate heats up.


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