Today’s Washington Post editorial on the Patriot Act reauthorization, "Patriot High Wire Act," completely misses the mark. The Post turns a blind eye to the vast amount of civil liberties protections Senate Democrats and the Obama administration gave up at last week’s Patriot Act markup, instead claiming that the Senate Judiciary Committee struck a "reasonable balance" in protecting civil liberties. There’s nothing "reasonable" or "balanced" in serving as, as Senator Feingold calls it, the Prosecutor’s Committee. The Patriot Act is a high wire act, and last week, the Senate Judiciary Committee jumped on the tight rope with no net. When will we stop buying into the Bush paradigm that the government must trade constitutional rights for national security? We will have another chance when the bill goes to the Senate floor, and maybe then the Senate will heed the warnings about excess power rather than buying what sound like Executive branch talking points packaged into editorials.
Let’s not forget the completely unreasonable path the Senate Judiciary Committee took towards reauthorizing the (un)Patriot Act-era provisions, culminating in last week’s markup when the Committee handed out surveillance powers like Oreo cookies at kindergarten snack time. As I blogged last week, the Senate Judiciary Committee marked up legislation that ended up as a glowing acclamation and reauthorization of the three expiring Patriot Act-era authorities (Section 215 orders, "John Doe" roving wiretaps and the never used "lone wolf" provisions) with a few privacy and civil liberties fixes, many of which are merely cosmetic. Democratic congressional members that were elected, in part, to roll back Bush-era surveillance policies were poised to do just that when Senators Feingold and Durbin introduced the JUSTICE Act, which provided for strong fixes to surveillance powers aimed at protecting Americans' privacy. Checks on the executive powers still seemed possible when Senators Leahy and Kaufman introduced a bill with fewer, but still important, privacy and civil liberties protections. Then Chairman Leahy made a deal with Chairwoman Feinstein (of the Senate Select Committee on Intelligence), and at the bill’s first markup, even some of the meager remaining civil liberties protections were stripped out of the bill.
However, last week, after a classified briefing from key Obama administration officials, the Senate Judiciary Democrats ignored the N.Y. Times' advice to roll back excess executive powers, and struck a deal to adopt a package of amendments that further stripped the bill of its civil liberties protections. It is unclear-since it was as secret meeting-how hard the Obama administration lobbied to remove the civil liberties protections, but with the help of unlikely Democratic bedfellows, like Senate Judiciary Ranking Member Jeff Sessions, the Obama administration ferried along, and in some cases, proposed the amendments. Senator Leahy has pitched this whole deal as a "compromise," and the Washington Post seems to have bought this spin hook, line and sinker, but it doesn’t look as though the Executive branch has had to give anything up here. The Washington Post claims
"the new bill includes a provision to better safeguard the privacy of library records."
But after the Judiciary Committee’s adopting the Obama administration-proposed amendment that limited the higher standard for obtaining library records under Section 215 to "patron and distribution lists," leaving open a lower standard for internet search records,
the Post should have more accurately said, the "new bill includes a provision to better safeguard the privacy of" SOME library records.
Even more outrageous is the Post’s defense of the National Security Letter power, which has been used to collect hundreds of thousands of records on people despite being the Patriot Act power with the most well-documented abuses. (See the two DOJ Inspector General Reports documenting hundreds of instances of the FBI misusing the NSL power, available here and here).
But my disappointment doesn’t lie entirely with the Senate Judiciary Committee and the Washington Post. Since taking office, the President has strayed from his promises and founding principles in failing to curtail the practice of indefinite detention, not lending his support to legislation to reform the state secrets privilege, refusing to release key interrogation photos, and, in the administration’s latest move to stay the course on Bush national security policies, actively lobbying for reauthorization of the three expiring Patriot Act-era provisions and sandbagging attempts to add in crucial civil liberties protections and checks on executive power.
With a President who once said:
So as Americans, we reject the false choice between or security and our ideals
and a Judiciary Chairman who so demandingly sought answers from Bush-era officials, it is a tremendous disappointment to watch secret meetings and backroom deals result in a loss of good checks on executive power. It is thanks in large part to the laudable work of Senators Feingold and Durbin, with support from Senator Specter, that the bill voted out of Senate Judiciary is not a total loss and contains important reporting requirements, new sunsets for key authorities, like the NSL power, and minimization procedures. And, there will be another opportunity when the bill goes to the Senate floor, where Senator Feingold has said he will offer civil liberties protection amendments. Perhaps the Senate will heed the N.Y. Times’ warning about excess power, instead of buying what sound like Executive branch talking points packaged into editorials.
Because, if our Senate keeps giving the FBI all the power it wants after secret meetings, and our President continues to grasp unconstitutional Bush-era principles and powers, it seems there will be no going back from the mistakes we made after 9/11. The Administration’s message is, "We must move forward." Well, moving forward must mean moving away from Bush-era practices that fly in the face of our founding principles. Moving forward should mean ditching the over-collection of information on innocent Americans, ineffective broad law enforcement authorities, secret briefings and secret deals awarding surveillance powers, the policy of holding people without charge or trial, and the government’s asserting "state secrets" to avoid liability for wrongdoing. Some apologists might tell me "baby steps." But, we are not changing into a secure nation that values civil liberties. We are stepping in the wrong direction-towards a surveillance state susceptible to fear mongering, and we will end up a less free, less safe, less hopeful nation.