You remember the USA Patriot Act, don't you? It was that 342-page bill that sped through a supplicant Congress within weeks of 9/11, dismantling our privacy rights like a castoff Hollywood set. A reauthorization in 2006 made some things better and some worse, but mostly the law stayed the same — really bad for American freedom.
Well it is time to revisit this act of congressional cowardice that vastly expanded the ability of the government to unjustly intrude on our private lives. Three provisions will expire by the end of the year, which means Congress will have to act.
The Senate Judiciary Committee debated a reauthorization bill on Thursday offered by committee Chairman Patrick Leahy of Vermont, and Sen. Dianne Feinstein of California. The measure falls short of resurrecting our shattered liberties, but it is a start.
You would think that with solid Democratic majorities in Congress, the Patriot Act's unleashing of FBI surveillance on innocent Americans would finally be redressed. But the fear among lawmakers is palpable that doing anything to return a constitutional balance to domestic spying operations will play badly come election time.
I can see the Dittoheads now on the one hand demanding that big government stay out of providing health insurance options, while on the other hand insisting that Big Brother be allowed to continue to peer into the financial, travel, communications and library records of anyone it wants with little or no evidence of wrongdoing. Principled consistency has never been one of their strong suits.
Here are the sections of the act that will expire:
• John Doe Roving Wiretaps. Under the act the FBI can go to a secret court under the Foreign Intelligence Surveillance Act and obtain a single warrant to tap multiple communications devices. But unlike a roving wiretap in a criminal investigation, the Patriot Act doesn't require the government to identify the target or the devices to be tapped. By leaving these details wide open, the warrant's execution is left entirely to the discretion of government agents, inviting privacy invasion and abuse.
• Lone Wolf. This provision allows the government to obtain a FISA warrant when the target is not connected to an international terrorist group or a foreign nation. The idea is that a foreign terrorist might be acting alone. But when a terror suspect has no ties to international terrorism the investigation looks quite a bit more like a criminal matter that can be handled through regular constitutional processes. Besides, the Justice Department has said that this authority has never been invoked. It's obviously not needed.
• Section 215 or the Library Provision. This is perhaps the best known part of the Patriot Act. It allows the government to go to the FISA court for "any tangible thing" relevant to a terror investigation — including library records. The provision is incredibly broad, allowing the government to demand huge quantities of records that don't have to pertain to the target of the investigation. It is an authorization for the FBI to sweep up and permanently store all sorts of personal details about people not suspected of doing anything wrong.
Even so, the FBI has been eschewing Section 215 orders preferring instead to use another gift of the Patriot Act, National Security Letters, as a way to bypass any judicial oversight. In 2008 there were only 13 requests for Section 215 orders, while in 2006 (the last figure available) there were 49,425 NSLs issued by the FBI, up from 8,500 in 2000.
NSLs are secret demand letters that can be internally created without court review. The Patriot Act reduced the standard to issue one and extended their reach. As long as the FBI claims the information sought is "relevant" to a terror investigation NSLs can collect volumes of personal financial records, credit reports, Internet searches and other sensitive information about Americans who are not suspected of anything.
The NSL provisions will not expire at the end of the year — they are permanent — though Leahy's legislation would put limits on NSLs after four years.
The passage of the Patriot Act was an American tragedy, one that can largely be undone with a little political backbone. This is where the Democrats in Congress can earn their keep. But will they?