Senate Democrats Block Reauthorization; House Briefly Extends Current Act

December 23, 2005

Last minute maneuvering has kept the Patriot Act in play — the Senate voted on the evening of December 21 to extend the USA PATRIOT Act for another six months after failing to permanently reauthorize it in the face of a Democratic filibuster. The House, in a pro forma session on December 22, extended the Act for only 5 weeks and a single Senator, John Warner, R-VA, accepted that change the Senate adjourned for the winter break. This pretty much assures that the Senate will have to deal with the Patriot Act when they return in mid-January to vote on the Alito Supreme Court nomination.

All of this is a mixed victory for advocates of reforming the law to better protect individual privacy and civil liberties. NOW and many other civil rights organizations opposed reauthorization of the controversial law, which has granted law enforcement authorities broad powers in surveillance and prosecution of suspected terrorists.

The Senate's refusal to reauthorize the law on the morning of December 21 was a rejection of the White House's bid to make many provisions of the act permanent — with no Congressional review and no additional safeguards. A bipartisan filibuster lasting over five days resulted in the extension, and many of the bill's troubling aspects will have to be re-visited in the new year, sadly giving the White House time to twist arms of recalcitrant Senators, but giving us time to lobby them as well. George W. Bush, Attorney General Alberto Gonzales and Senate Majority Leader Bill Frist (R-Tenn.) fiercely attacked opponents of reauthorization by asserting that the Senators were putting the public at risk by failing to pass the legislation.

Their failed efforts came in the midst of a stunning revelation that the administration has been conducting secret surveillance without first obtaining warrants from a special Foreign Intelligence Surveillance (FISA) Court — as they are required by law to do. One of the FISA court's judges, James Robertson, resigned earlier this week in protest of the actions of the administration in bypassing the court.

Background:

In just a few short weeks after September 11, 2001, the Bush administration and right wing Republican leadership pushed the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" Act through Congress, more familiarly known by the misnomer, the USA PATRIOT Act. At the time, Congress members were pressured to pass the legislation, even though many had not even read the 342-page act.

This new law gave unprecedented, unnecessary powers to the government at the expense of civil liberties protected by the Constitution of the United States. Ironically, in a country that was founded on dissent, the Patriot Act seeks to quell those sentiments by creating and defining the crime "domestic terrorism" so broadly that legal acts of civil disobedience could be grounds for federal criminal charges.

Over the last few years, the FBI Joint Terrorism Task Forces have greatly expanded their scope to investigate various anti-war and other organizations. Late last year, the American Civil Liberties Union filed Freedom of Information Requests (FOIA) asking for information on more than 100 groups and individuals who may have been targeted by the FBI under the USA PATRIOT Act. This spring, the ACLU filed a lawsuit attempting to compel the FBI to release files on such groups as Greenpeace, United for Peace and Justice, People for the Ethical Treatment of Animals and the American-Arab Anti-Discrimination Committee.

New language in the reauthorization of the PATRIOT Act would make it even easier for the federal government to investigate organizations and individuals, because the target of the investigation does not have to be suspected of any wrongdoing. The government would not have to disclose to the targeted individual or group that they have requested such information, the government may retain that information indefinitely, and if anyone discloses that he/she has received a secret order to turn over information to the government without first getting Department of Justice permission, they could face criminal charges!

H.R. 3199 fails to provide a balance between national security and civil liberties. It is clearly a more draconian approach to seeking out supposed terrorists in a variety of ways that could easily be misapplied: "sneak and peak" searches (surreptitious searches without notice, until some later date, often much later) under a broad standard not limited to terrorism, with new provisions for indefinite waivers to allow searches to remain secret; deletion of a number of limits on surveillance powers that would now be made permanent; and many other dangerous expansions of government power without accountability.

NOW Resolution - A resolution opposing the law and addressing the PATRIOT Act's impact on immigrants was passed at the 2005 NOW Annual Conference, citing concerns with potential violations of due process, summary deportations without evidence of a crime, prevention of courts from questioning government actions in certain deportation cases, the abolition of fair hearings for lawful permanent residents convicted of even minor criminal offenses permitting an "expedited removal" procedure and other "negative impacts on the civil liberties and civil rights of every person in this country, regardless of their citizenship or immigration status." The resolution further states that the PATRIOT Act (current law) allows the U.S. Attorney General to deport an immigrant to any country in the world - "even though their life or freedom may be threatened because of race, political opinion or other reasons." Obviously, this and other parts of the Act pose a serious threat to battered immigrant women who are fleeing violence by seeking asylum in the U.S. NOW and other anti-violence groups have worked over the years to improve immigration law and regulations to protect battered immigrant women.

Above and beyond the implications of the PATRIOT Act for immigrants, there remain many egregious provisions that could affect anyone, regardless of citizenship; here is a short summary, as provided by the American Civil Liberties Union (ACLU):

The conference report ("conference report") makes virtually all of the expiring provisions of the USA PATRIOT Act (Patriot Act) permanent without including necessary changes to restore checks and balances.
Personal records from libraries, bookstores, doctor's offices, business, and other entities that are not connected to an international terrorist or spy could still be obtained using either a secret order under the Foreign Intelligence Surveillance Act (FISA) or a "national security letter" (NSL) that can be issued by an FBI official without any court oversight.
Both secret FISA orders and NSLs would continue to contain a potentially permanent gag provision that bars a recipient from telling anyone (other than the recipient's lawyer) that records have been obtained. The court must accept as "conclusive" the government's assertion that disclosure of an NSL would harm national security.
The bill allows sneak-and-peek searches under a broad standard not limited to terrorism cases. New 30 and 90 day time limits could be waived or renewed indefinitely, allowing such searches to continue to remain secret for weeks, months or even years.
The bill still allows secret eavesdropping and secret search orders that do not name a target or a location, with only after-the-fact oversight by a court as to why the government believed a unknown target was in that location.
Reforms the Patriot Act's definition of "domestic terrorism" to provide that assets may not be forfeited except where the organization or individual is involved in a serious federal crime - a welcome change.
Omits modest limits on a host of additional Patriot Act surveillance powers, all of which are made permanent.
Although the final reauthorization bill includes the most extreme death penalty provisions sought by some, it would create a number of new crimes, including new death penalties, without adequate consideration by Congress.
The bill allows the Justice Department, not federal courts, to determine that a state has a competent death penalty system, qualifying it for a relaxed set of procedural rules for federal habeas proceedings.
Provides a new, four year sunset [expiration] on only three provisions out of scores of new surveillance powers obtained by the government in the Patriot Act.

Republican conferees rammed through this legislation, excluding Democrats from final deliberations ? as is frequently the arrogant practice by Republican members. In fact, Sens. Patrick Leahy (D-Vt.) as Ranking Member of the Judiciary Committee and John Rockefeller IV (D. W.Va.) as Vice Chairman of the Select Committee on Intelligence, with Ted Kennedy (D-Mass.) and Carl Levin (D-Mich.) sent a letter to Conference Committee chairs, Sen. Arlen Specter (R-Penn.) and Rep. James Sensenbrenner (R- Wis.) stating their opposition to the legislation. The Senators noted that while the bill makes a few improvements, it still fails to sufficiently protect individual rights and liberties and urged instead a three-month extension of the old law to allow more time for improvements to the Act.

Also, a bipartisan group of Senators, including Republican Sens. Larry Craig (Idaho), John Sununu (N.H.) and Lisa Murkowski (Alaska) with Democratic Sens. Richard Durbin (Ill.), Russ Feingold (Wis.) and Ken Salazar (Colo.) issued a statement that decried the Conference Report's deletion of provisions adopted unanimously by the Senate in July that would better protect constitutional rights while still providing law enforcement authorities the tools they need.

It is critically important that everyone send a message as soon as possible to their two Senate members to oppose this dangerous expansion of government authority, without essential oversight and accountability.

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