Last night, Congress passed and the president signed a four-year extension of three expiring provisions of the Patriot Act. You may recall that the original expiration was scheduled for December 31, 2009 — and what did Congress do after 18 months of short term extensions, sporadic hearings and a markup or two? Nothing. The Patriot Act was reauthorized as-is without a single additional privacy protection. After a rollercoaster week of Patriot Act consideration there were some definite winners and losers:
- Sen. Ron Wyden (D-Ore.). Sen. Wyden is a member of the Senate Select Intelligence Committee and has been ringing the bill on the Patriot Act for quite a while. In particular, he’s been warning us that despite the law being unconstitutional and permissive on its face, the Administration relies on secret legal interpretations that let them go even farther. As he said on the floor: “I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” Although Congress did not vote on his amendment regarding secret law, he got committee chairman Sen. Dianne Feinstein (D-Calif.) to agree to turn the Intelligence Committee’s attention to this point.
- Sen. Mark Udall (D-Colo). Sen. Udall has been on the Intelligence Committee for all of five months and has already fought harder for privacy than some members have done in the decades they have lounged there. He introduced an amendment to fix section 215 of the Patriot Act — the so-called library provision—and gave Sen. Wyden an assist on the secret law issue. He’s a rising leader in the civil liberties area — keep an eye on him.
- Sen. Rand Paul (R-Ky.). When Congress gave itself a short-term extension to discuss amendments and strategy three months ago, Sen. Paul was very clear: if he didn’t get to offer amendments next time around, he’d procedurally draw out the Patriot Act process as long as he possibly could. And he did. And he got to offer the only two amendments considered on the Senate floor. Both failed, but without his leadership there probably wouldn’t have been a record 23 ‘no’ votes on final passage, including four republicans.
- The entire House of Representatives. The House spent roughly 30 minutes debating the Patriot Act this time around. Seriously? I guess with the Memorial Day weekend approaching they had to get home to eat some barbecue and kiss some babies.
- Senate Leadership — both parties. They had three months notice of this expiration, yet waited until the week of the sunset to get down to business, and at the end of the day, did not get it together and permit votes on some very important amendments. For example, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) had a very moderate, bipartisan, bicameral reform proposal that would insert rudimentary oversight and accountability provisions into the Patriot Act. It didn’t even get a vote.
Patriot will be back in four years. In the meantime, keep your eye on cybersecurity. There are proposals out there that would permit information grabs that make the Patriot Act look quaint. Also get prepared for a fight over the FISA Amendments Act, which will sunset next year. See you then!