Patriot Act Post-Mortem

Patriot Act Post-Mortem

The failure of a complaisant, Republican-controlled Congress to enact meaningful changes to the Patriot Act means that midterm elections are the only true path to reform.


On March 9 President Bush signed into law the USA Patriot Improvement and Reauthorization Act, officially ending an extended campaign by civil liberties groups to put some limits on the expansive powers handed to the President on a silver platter six weeks after the 9/11 terrorist attacks. Bush and the Justice Department’s press office touted the bill’s “safeguards for civil liberties,” and Representative James Sensenbrenner Jr. claimed to find thirty civil liberties protections in the law. But no one should be fooled: This was a bitter disappointment for civil liberties proponents. So what went wrong?

It’s not for lack of trying. The Bill of Rights Defense Committee launched an impressive grassroots campaign almost immediately after the Patriot Act was enacted; eventually eight states and nearly 400 towns, cities and counties passed resolutions condemning the act’s civil liberties abuses. The ACLU and others entered into coalitions with conservative groups in hopes of pulling a Republican Congress along. Unlike in 2001, this time Congress held multiple hearings before acting. And the disclosure in December that President Bush had authorized warrantless wiretapping of Americans for years showed once again that this is not an executive worthy of trust with open-ended powers.

But in the end, Congress voted to extend all sixteen provisions that were originally set to expire on December 31, making only minor modifications to a handful. The new law, for example, requires the FBI director or deputy director to approve requests for library and medical records, and permits recipients of such “Section 215” orders to disclose them to lawyers to challenge them in court. But the Section 215 power remains incredibly broad; it doesn’t even require the government to show that the person whose records are sought has any connection to terrorist activity.

As I have previously argued [see “The Missing Patriot Debate,” May 30, 2005], the principal problem with the reauthorization debate was that most of the act’s worst provisions were not even on the table. These include sections making it a crime to offer “expert advice” to a proscribed political group, regardless of its content; allowing the government to freeze the assets of suspected charities without any showing of wrongdoing, and based on secret evidence; and permitting foreign nationals to be locked up without charges, deported for innocent political associations and kept out of the country for endorsing any group the government labels as “terrorist”–under a definition so capacious that it could include the African National Congress and the Israeli military.

Why weren’t these issues even up for discussion? Largely because conservatives didn’t express concern, and so the liberal-conservative coalition that drove the debate wrote them off, focusing instead on the few parts of the law that conservatives found offensive. In the end, we didn’t even see much progress on those.

The hurdles to any real reform are underscored by the fate of another recent legislative effort. In December Congress passed the McCain amendment, which bars US officials from subjecting anyone, anywhere, to cruel, inhuman or degrading treatment. The Bush Administration had interpreted the prohibition, which originally derives from a human rights treaty, as not applying to foreigners held outside our borders–freeing it to “waterboard” suspects held at secret CIA “black sites” abroad. The human rights community attacked that position for the outrage to human dignity it was: The right to be free of cruel, inhuman or degrading treatment cannot turn on the color of one’s passport.

But at the same time that it enacted the McCain amendment, Congress simultaneously adopted another one, named for Senators Lindsey Graham and Carl Levin, that restricts habeas corpus review for enemy combatants held at Guantánamo (Levin got involved to ameliorate what would have otherwise been an even more restrictive bill). The Justice Department recently argued, in a case challenging the force-feeding of a Guantánamo hunger striker, that the Graham-Levin amendment renders the McCain amendment unenforceable for Guantánamo detainees.

The real obstacle to reform, in other words, is this Republican Congress, which now threatens to give President Bush a blank check on warrantless wiretapping instead of censuring him for the criminal spying he’s authorized for four years. The only true path to reform is the midyear elections. Volunteer now!

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