Like the mythical phoenix that rises from the ashes, the USA PATRIOT Act just won’t go away. After signing the massive piece of legislation into law on October 26, 2001, President George W. Bush and his attorneys general John Ashcroft and Alberto Gonzalez (with considerable help from former Vice President Dick Cheney), tried repeatedly to expand its powers. They did this both by seeking to amend the Act directly, as well as through other legislative vehicles such as the Foreign Intelligence Surveillance Act (FISA). They were occasionally successful and sometimes not; but they never stopped trying.
During the 2008 campaign, then-candidate Barack Obama made statements appearing to support moves to scale back these laws. However, when the time came for a vote in the summer of 2008, he not only voted against scaling back FISA, but in favor of expanding its reach considerably. In fact, he voted to grant immunity retroactively to telecommunications carriers that had facilitated the Bush Administration’s warrantless interception of millions of Americans’ international phone calls and e-mail transmissions in violation of FISA.
Soon, if several members of Congress of the president’s own party have their way, Obama will have the opportunity to act consistent with his statements as a senator, and help to scale back at least some of the provisions of the Patriot Act and FISA. How the president and his teams at the Departments of Justice, Defense and State, and his appointees in the various intelligence agencies respond to these moves on the Hill, will establish definitively whether the “change” Obama promised as a candidate was mere rhetoric or actual commitment.
No less a figure than John Conyers, the veteran Democratic Congressman from Michigan who chairs the Judiciary Committee, is leading the effort in the House to reform the Patriot Act and FISA. The effort across the Capitol Dome is being championed largely by Sen. Russ Feingold of Wisconsin and Assistant Majority Leader Richard Durbin of Illinois.
While Senate Judiciary Committee Chairman Pat Leahy of Vermont appears to share a desire to scale back both these laws, he has shown himself unable or unwilling to withstand pressure from federal law enforcement and intelligence agencies, and has repeatedly backed away from moving such amendments forward. As recently as October 8th, for example, a proposal by Durbin limiting the extent to which government agents are able to gain access to private records on individual citizens without any showing that the individuals are suspected of engaging in any criminal or terrorist acts, failed even to get out of Leahy’s committee.
House and Senate reformers are seeking to take advantage of a renewed focus on the Patriot Act, resulting from the fact that several provisions of the law expire at the end of this year unless they are reauthorized by Congress. Although the Obama Administration has stated clearly that it favors renewal of those expiring provisions, it has also indicated a willingness to consider certain “modifications” to better protect “the privacy of law abiding Americans.”
While the mollifying words of President Obama, delivered to the Hill through his Justice Department last month, may cheer some Patriot Act skeptics, most members have learned to take such rhetoric with a grain of salt. After all, the Bush Administration repeatedly offered rhetoric promising to protect Americans’ “privacy,” even as it ran roughshod over it.
Still, the limited and reasonable scope of the Conyers-Durbin-Feingold efforts (none of their legislative proposals would come close to gutting either FISA or the Patriot Act, but would slightly but importantly limit the reach of a few of the most constitutionally-troublesome provision) should put them in a strong position later this year to achieve at least a partial victory. And in this day and time, when the government’s power to invade citizens’ privacy is expanding exponentially, even a small victory is a major one.