Around five o’clock last night, before the Senate broke for its annual August recess, the Specter-Feinstein bill to reauthorize the expiring provisions of the Patriot Act passed. This bipartisan bill was approved through a process called “unanimous consent,” where the leaders of both parties get consent to take action on a measure and none of the other Senators object.
The good news is there were also no amendments to make the bill worse or try to strip out some of the modest improvements made to the Patriot Act. As we prepared for the summer break in the congressional session, we were developing a strategy to make sure the Roberts bill approved by the Senate Intelligence Committee would not be dueling on the Senate floor with the Specter bill.
As you recall, the Senate Intelligence Committee had passed a bill to expand the Patriot Act and did so behind closed doors. Just this past Wednesday, the FBI was asking again for expanded powers to write its own search orders without any court approval in advance and without demonstrating to any court that there were any facts connecting any personal records sought to an agent of a foreign power.
This terrible idea, called “administrative subpoena” power by the Justice Department and called the FBI’s “write-your-own-search-order” by us, was not embraced by the three other Committees in Congress that considered the Patriot Act (though an amendment by Congressman Flake on the House floor takes a step backward in that direction–more on that later).
Still, had the Specter bill not been approved by “UC,” in the lingo of the Senate, it would have been subject to potentially unlimited amendments and debate unless there were consent by both parties to limit these or if “cloture” had been invoked (a Senate rule allowing a super majority to force a vote). Unlike the House, the Senate is the last bastion of the democratic principle of freedom of debate and amendment, where the tyranny of any majority party is not allowed to gag the minority or limit amendments to only those approved by the party in power–as happened in the House Rules Committee a week ago.
So, now the Senate bill which the ACLU has praised for being a truly bipartisan effort that take some modest steps toward reforming the Patriot Act (but which we cannot endorse due to the significant flaws that remain) goes to conference.
This is the process for reconciling differences between bills passed by both houses of Congress about the same subject. We know the Senate conferees, but not the House ones yet. They are Chairman Specter and Chairman Roberts, as well Senators Hatch, DeWine, Kyl, Sessions, Leahy, Rockefeller, Kennedy, and Levin (members of either or both the Judiciary and Intelligence Committees).
The ACLU and its allies across the nation still have a lot of work ahead of us to help ensure that in the conference committee of House and Senate members the modest improvements are not lost and that the worse provisions of the severely flawed House bill do not become the law.
We’ll be reaching out to you in the coming weeks as we work toward a vote in both the House and Senate on a final bill, likely in September.
Thank you again for your tremendous efforts! We still have much to do to reform the Patriot Act so that we can be both safe and free.