We know the rules by now, the strange conventions and stilted Kabuki scripts that govern our cartoon facsimile of a national security debate. The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place. Conservatives hit the panic button on the right-wing noise machine anyway, keeping the delicate ecosystem in balance by creating the false impression that something has changed. We’ve watched the formula play out with Guantánamo Bay, torture prosecutions and the invocation of “state secrets.” We appear to be on the verge of doing the same with national security surveillance.
Last week, the Senate Judiciary Committee seemed to abandon hope of bringing any real change to the Patriot Act. A lopsided and depressingly bipartisan majority approved legislation that would reauthorize a series of expanded surveillance powers set to expire at the end of the year. Several senators had proposed that reauthorization be wedded to safeguards designed to protect the privacy of innocent Americans from indiscriminate data dragnets–but behind-the-scenes maneuvering by the Obama administration ensured that even the most modest of these were stripped from the final bill now being sent to the full Senate.
In September the Senate got off to a promising start. Only three provisions are actually slated for “sunset” this year: “lone wolf” authority to wiretap terror suspects unconnected with any foreign terror group; “roving” wiretaps that can follow a suspect across an indefinite number of phone lines and Internet accounts; and “Section 215″ orders that can be used to compel third parties to turn over any “tangible thing” investigators believe may be relevant to a terrorism investigation. Yet several Democrats had signaled a desire to use the renewal process to undertake a much broader review of the post-9/11 surveillance architecture, including National Security Letters (NSLs)–a controversial tool that permits the mass acquisition of financial and telecommunications records without court order–and last year’s sweeping amendments to the Foreign Intelligence Surveillance Act (FISA), which permit the executive branch to authorize broad interception of Americans’ international communications with minimal court oversight. Democratic Senator Russ Feingold proposed an ambitious and comprehensive reform bill called the JUSTICE Act–which still would have reauthorized roving wiretaps and 215 orders–while Democratic Senator Patrick Leahy offered a more modest bill that nevertheless sought to narrow the nearly unlimited scope of NSLs and Section 215.
The renewal of the expiring provisions was always a fait accompli, though Fox News and some conservative columnists falsely claimed that Democrats were scheming to eliminate them entirely. Feingold had recommended permitting the as-yet-unused “lone wolf” provision to lapse, but at hearings on renewal last month Democratic Senator Sheldon Whitehouse didn’t believe there was “any doubt” about the reapproval of all three. Rather, Whitehouse explained, the question was whether any “further refinements” might be needed to check potential abuses.