Chronology of PATRIOT Act Reauthorization
The original PATRIOT Act included 16 provisions, which were to sunset at the end of 2005. One of those provisions is Section 215, the so-called library provision, which enables FBI agents to ask libraries and other entities for “tangible things” such as “books, records, papers, documents and other items.” Librarians have organized against this provision of the PATRIOT Act, by passing local, state and national library association resolutions, by posting notices in libraries that their records aren’t private, and by shredding records immediately after their use is complete.
On June 15, 2005, the House of Representatives voted 238 to 187 for the Sanders Amendment, which would have stripped funding from Section 215. It was considered a major victory against the PATRIOT Act, much like the Otter Amendment of 2003, which passed 309 to 118, and stripped funding from Section 213 – the sneak and peek provision, which allows the FBI to search your home, and not tell you about it. Unfortunately, though the Otter Amendment passed by an overwhelming majority – it never saw the light of day when it came time for a vote on the bill it was attached to. Something similar happened in 2005 to the Sanders Amendment.
In July 2005, the House and Senate passed separate versions of the PATRIOT Act reauthorization. The House version was manipulated by Republican leadership, disallowing votes on any amendments they didn’t want the House to consider. The Sanders Amendment was one of those banned from the reauthorization vote, even though it had broad support.
The House version of the reauthorization was expanded to include new provisions that violate civil liberties and additional death penalty laws, many introduced by John Carter, from the Killeen/Temple area of Texas. The House version passed 257-171. The Senate version contained significant civil liberties protections and passed unanimously, giving it more perceived strength than the House version. Many in the Senate are still calling for a reauthorization that more closely follows that version.
The two versions had to be reconciled, and that is done by naming conferees to seek consensus in merging the two bills into one Conference Report. The Senate conferees were named on July 29, the same evening they passed their reauthorization bill. The House (Rep. Sensenbrenner) didn’t name conferees until November 9. The conferees reached an agreement on November 16 and issued a preliminary report, which was immediately rejected by many (Republicans and Democrats) in the Senate.
New Additions Unrelated to the USA PATRIOT Act
That was the first time we’d seen a whole section on methamphetamines – which had not been subjected to hearings or floor debate. It was also the first time we’d seen a section on “national special security events” and a new uniformed police agency whose responsibility it would be to police those events. This is in Title VI of the Conference Report – but it hadn’t appeared in either the House or Senate version of the reauthorization. So, it’s obvious the Republican leadership was using the PATRIOT Act reauthorization to stuff with items from a White-House wish list.
These “national special security events” refer to public visits of the president or vice-president, or any candidate protected by the Secret Service. This section increases penalties for staying in a cordoned off area from a fine and/or 6 months in jail to a fine and/or 10 years imprisonment. This brings to mind the number of political protesters at Bush/Cheney events in the 2004 election season who either were arrested, attacked, asked to leave, or thrown out of Bush/Cheney events. Three teachers in Medford were asked to leave a Bush event simply because they wore t-shirts with the words “Protect Our Civil Liberties.” In Eugene, Oregon, a 54-year-old woman – Perry Patterson, who is not an activist – was arrested at a Cheney event because she wouldn’t leave after blurting out, “No!” in response to Cheney’s assertion that the Bush Administration has made us safer from terrorism.
It is troubling that this addition to the PATRIOT Act reauthorization conference report has nothing to do with preventing terrorist attacks. Instead, it would isolate Bush and Cheney from possible public dissent by naming a new police force, and further restricting the area where the president or vice-president appear publicly.
This section of the conference reportis fairly well hidden – it hasn’t received a lot of attention. The ACLU wrote a letter on December 12 to Representatives Sensenbrenner and Conyers objecting to this provision, saying it could post a significant danger to free speech. But I had to dig around to even find that – this is just completely hidden away. And, I believe is enough of an obstacle to urge our Congressional delegation to vote against the reauthorization.
But there are more reasons that have come up since October.
Civil Liberties Abuses Recently Brought to Light
On October 24, we learned from the Electronic Privacy Information Center (EPIC) through Freedom of Information Act materials that the FBI has conducted clandestine surveillance on some U.S. residents for as long as a year and a half without proper paperwork or oversight. This means that FBI agents have kept individuals under surveillance without going to the Foreign Intelligence Surveillance Court for a warrant. Since the Patriot Act made it easier to get these warrants, there is no excuse for an agency that ignores oversight. The FBI also self-reported at least 153 instances of alleged misconduct during the year 2003 alone. Full hearings into FBI alleged misconduct must precede any effort to reauthorize parts of the PATRIOT Act. The American public deserves to know how the laws are being used and misused, so we can make intelligent decisions about what powers to grant the FBI, and what powers need to be rescinded or restricted.
On November 6, a Washington Post article alerted the public to the fact that the Department of Justice has been using 30,000 national security letters a year to gain access to many thousands and possibly millions of hotel, car rental, phone, bank, and other records on ordinary people. The government is not destroying these records when they are found to be connected to innocent people. In fact, they can be held indefinitely, and shared with local, state, county and tribal governments – and even sold to “appropriate private sector entities.” It is clear that adding more hay to the haystack will not result in more easily or speedily finding the needle. It’s time for Congress to strengthen judicial oversight of Department of Justice warrants, including national security letters. Fishing expeditions are not an effective form of police work; there must be particularized suspicion before demanding records.
On December 16, the American public learned from a New York Times article that the President has ignored judicial oversight by ordering the National Security Agency (NSA) to intercept electronic communications in the United States. This kind of Presidential action was strictly prohibited by the Foreign Intelligence Surveillance Act (FISA) of 1978, following the Church Commission hearings during which it was learned that the Executive branch infiltrated and spied on political groups in an attempt to disrupt their activities. Instead of reauthorizing the PATRIOT Act, and thus strengthening Executive branch powers, it is time to reduce or eliminate some of those powers, and curb others with strong Congressional and judicial oversight.
On December 21, we learned that counterterrorism agents at the FBI have conducted surveillance and intelligence-gathering operations on political groups such as PETA (People for the Ethical Treatment of Animals), Greenpeace, and the Catholic Workers group – rather than spending appropriate tools necessary to intercept and obstruct terrorism, as provided by the PATRIOT Act. Congress must work to establish safeguards so that these kinds of First Amendment abuses cannot continue.
The Conference Report Process
On December 8, the conferees reached an agreement and came out with a final Conference Report. On December 14, the House approved the Conference Report by a vote of 251 to 174. But on that same date, 9 Senators – including 4 Republicans – issued a 6-page letter to other Senators outlining why the Conference Report is flawed and not even a reflection of either the House or Senate bills that were passed. This letter laid the groundwork for the filibuster, first threatened by Wisconsin Senator Russ Feingold, and ultimately joined by 46 other Senators (5 Republicans) on December 16 – the day the White House spy scandal broke. The strength of that filibuster coalition enabled Feingold and others to approve a 6-month extension for the PATRIOT Act. That prevented the 16 sunset provisions from expiring on December 31, and gave the Congress time to reconsider the reauthorization bill in the new year.
But on December 21, Representative Sensenbrenner put a stop to the 6-month extension idea. According to the rules of the House, once a bill has reached this kind of back and forth between the House and Senate without agreement, it only takes one representative to carry the weight of the entire House, without disagreement. Instead of agreeing to the 6-month extension, Sensenbrenner answered for the House that it would be a 5-week extension. No one in the Senate stood against this proposal – so we now have a 5-week extension, which expires February 3.
Sensenbrenner’s actions seem designed to bully Congress. A 6-month extension would have given Congress a chance to revise the Conference Report, which is a bloated bill that does little to protect civil liberties while adding death penalties, methamphetamine provisions, and a new national police force.
As it now stands, with only a 5-week extension, Sensenbrenner hopes to leave Congress with no choice but to pass the Conference Report as is. He made it clear on December 21 that no changes can be made to the Conference Report, because the conferees have disbanded. Many groups like the ACLU, Friends Committee on National Legislation, the Center for Democracy and Technology and other civil liberties groups want Congress to pass the Senate version of the reauthorization, which provides a few protections for civil liberties.