October 2, 2009 | By Kevin Bankston

Tip of the Hat, Wag of the Finger: PATRIOT Edition

Yesterday's Senate Judiciary mark-up of legislation to renew expiring provisions of the USA PATRIOT Act was extremely disheartening--in particular because of many committee Democrats' failure to support new civil liberties reforms to PATRIOT(see our summary here). Those Senators who failed to stand foursquare behind Americans' right to privacy against government spying should be on notice that Americans who care about civil liberties are very disappointed; those that did stand up for our rights deserve our vocal thanks.

Our first wag of the finger goes to Senators Leahy and Feinstein. We expressed our disappointment with Senator Leahy last week when instead of sponsoring the Feingold/Durbin JUSTICE Act he introduced his own PATRIOT renewal bill with much fewer surveillance reforms. Most notably, that bill did not contain any reforms to last year's FISA Amendments Act, which is an even graver threat to Americans' privacy than PATRIOT.

Well, that watered-down bill was watered down again when the mark-up began: Senator Leahy negotiated with Senator Feinstein, a member of the Judicary Committee and chair of the Intelligence Committee, to create a new bill containing even fewer reforms than the original Leahy bill. Especially disappointing was the new bill's failure to require that PATRIOT Section 215 orders for the hand-over of sensitive phone, internet and credit records be limited to records that pertain to a spy or terrorist. Unfortunately, it was this even more watered-down Leahy/Feinstein bill that the committee considered yesterday, and which it will continue to consider next Thursday.

Sadly, it's no surprise that Senator Feinstein would favor government power over individual privacy when it comes to debates over foreign intelligence surveillance, especially now that she is heading the Senate Intelligence Committee. But we expected more from Senator Leahy, who has often been a staunch defender of civil liberties and who supported a much broader range of privacy protections when PATRIOT came up for reauthorization in 2005. A press release from Senator Leahy applauded this new bill as representing progress, but we must respectfully disagree.

The next wag of the finger goes to all of the Democrats who failed to support Senator Durbin's amendment to fix the Leahy/Feinstein bill's most obvious deficiency by re-injecting the new, heightened standard for the issuance of 215 orders that was in the original Leahy bill. Those eight Democrats, many of whom have supported stronger PATRIOT reform in the past, were:

Senator Leahy of Vermont
Senator Kohl of Wisconsin
Senator Feinstein of California
Senator Schumer of New York
Senator Whitehouse of Rhode Island
Senator Klobuchar of Minnesota
Senator Kaufman of Delaware
Senator Franken of Minnesota

We were especially disappointed--and made curious--by continued assertions by Senators Feinstein and Whitehouse that modifying the 215 standard would interfere with an ongoing classified intelligence program (the Administration has also noted the existence of this classified program that relies on 215 orders; Emptywheel at Firedoglake has a nice round-up up those mentions here). This kind of "you'd understand how I was voting if you knew the scary things I knew" posturing is Bush-era nonsense, and we agree with Senator Feingold that more information needs to be declassified so that Congress and America at large can have an informed debate about these spying authorities. He's received the same classified briefings, and he noted several times yesterday that the classified uses of 215 amounted to an abuse of power.

Speaking of Senator Feingold, he and Senator Durbin have earned a big tip of the hat for their tireless work to reform PATRIOT, and we especially congratulate Senator Feingold on the success of his amendment to rein in sneak and peek searches by shortening the time by which targets must be notified of a search from thirty days to one week. We hope that they both will continue to offer more privacy-protective amendments next week; Senator Feingold noted that he expected to introduce up to three more amendments. We look forward to seeing an amendment to add new checks and balances when it comes to National Security Letters. We also hope that at least some of the amendments next week seek to reform the FISA Amendments Act, which broadly expanded the government's warrantless wiretapping authority and granted immunity to telecoms like AT&T that broke the law by cooperating in the National Security Agency's warrantless wiretapping program.

Finally, we want to tip our hat to Senator Cardin and especially to the Democrats' newest member, Senator Specter, for joining with Senator Feingold to vote in support of Senator Durbin's 215 amendment. We hope that they will continue to do right by their constituents by supporting civil liberties reforms to PATRIOT and the FISA Amendments Act, and that the others who voted against Durbin's amendment will see next week as a new chance to demonstrate their commitment to surveillance reform.

However, we need your help to make that happen, so our last tip of the hat is to you, the concerned citizen. We still need your continuing help to make sure that the PATRIOT renewal process yields new privacy protections. So please, go to our action center now to tell your Senator to support strong reforms like those in the JUSTICE Act when amendments come up next week.


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