Senate Delays Patriot Act Passage

The Senate was “our last, best hope to preserve our fundamental freedoms, and it did not fail,” said ACLU Washington Legislative Office Dir. Caroline Fredrickson. She called the cloture defeat a “victory for the privacy and liberty of all Americans.” Some senators who voted against cloture pointed to mounting evidence secret records search powers widened by the Patriot Act often are used to gather innocent Americans’ financial and Internet transaction records, ACLU said.

The vote came after a N.Y. Times report that the White House ordered the National Security Agency (NSA) to monitor international phone calls and e-mails of people in the U.S. without court approval, violating the Foreign Intelligence Surveillance Act (FISA). The Electronic Privacy Information Center (EPIC) last week found examples of questionable Patriot Act uses (WID Dec 14 p3). The current bill would renew 16 parts of the law set to expire Dec. 31, making 14 permanent. The House passed the measure Wed. 251-174 (WID Dec 15 p5).

The Center for Democracy & Technology (CDT) urged Congress to delay reauthorization so it can revisit the law’s sweeping surveillance provisions. “The Administration’s disregard for the law is all the more reason to hold up reauthorization,” CDT Pres. Jerry Berman said: “If the Administration is citing the Iraq resolution as justification for secret surveillances, Congress needs to look closely at all the provisions of the Patriot Act and determine what else may have been authorized without public debate.”

FISA was enacted with the Executive Branch understanding that judges would approve electronic eavesdropping in the U.S. “with its technological capability of being a vacuum cleaner of electronic communications,” the CDT said. It rejected a White House claim that national emergency made the program necessary. FISA took that into consideration, CDT said, permitting emergency wiretaps without a court order but only for up to 24 hours, while applications were being prepared.

Sens. Feingold (D-Wis.) and Sununu (R-N.H.) led Senate resistance. Their allies included Senate Judiciary Committee Ranking Member Leahy (D-N.H.) and Sens. Reid (D- Nev.), Kennedy (D-Mass.), Craig (R-Ida.), Durbin (D-Ill.), Feinstein (D-Cal.), Salazar (D-Colo.), Murkowski (R- Alaska), Hegel (R-Neb.), Baucus (D-Mont.), Schumer (D- N.Y.) and Levin (D-Mich.).

The U.S. can’t afford to let counter-terror tools lapse, Attorney Gen. Alberto Gonzales said. “After 23 congressional hearings, testimony from more than 60 different witnesses and months of deliberations, it is now time for the Senate to act,” he said. But hearings on Patriot Act provisions “have been like Kabuki theater,” with Justice Dept. and FBI witnesses suggesting those agencies have “never done anything wrong” under the law’s surveillance powers, ACLU Senior Counsel Lisa Graves told reporters last week. There has been “one-sided shading of information” and “one-sided negotiation” under a White House “known to manipulate information,” she alleged.

Checks and balances, judicial review and congressional oversight are vital ingredients to preventing abuse of new govt. powers, Leahy said Fri. “Our goal has been to mend the Patriot Act, not to end it. The best solution is to just fix the bill,” he said, saying that could be done before Congress adjourns this week. Renewed scrutiny should include elements that don’t sunset, such as authority for FBI agents to issue National Security Letters to ISPs, phone companies, credit card providers and other businesses without judicial review, CDT said.