First, the good news: Last night, civil libertarians had a rare excuse to pop champagne when an effort to fast‐track a one‐year reauthorization of three controversial Patriot Act provisions–set to expire at the end of the month–failed in the House of Representatives. As Slate’s Dave Weigel notes, the vote had been seen as such a sure thing that Politico headlined its story on the pending vote “Congress set to pass Patriot Act extension.” Around this time last year, a similar extension won House approval by a lopsided 315–97 vote.
Now the reality check: The large majority of representatives also voted for reauthorization last night: 277 for, 148 against. The vote failed only because GOP leadership had sought to ram the bill through under a “suspension of the rules”–a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments–which required a two‐thirds majority for passage. Given last week’s developments in the Senate, it’s still a near certainty that the expiring provisions will be extended again before the end of the month. In fact, there’s a Rules Committee meeting today to get the bill back on the House floor. Also, while the defection of 26 Republicans who voted against reauthorization is the first real pushback against leadership we’ve seen since the GOP took the House, some of the talk that’s circulated about a Tea Party backlash against the surveillance state seems premature. As Weigel notes, just eight of the 26 Republican “no” votes were incoming freshmen, and many representatives prominently associated with the Tea Party were on the other side. Some of the resistance seems to have been generated by the fast‐track approach, as there haven’t been any hearings or mark‐ups on Patriot legislation.
That said, the tide does seem to be shifting somewhat. The failure of the fast‐track vote means that we may see the reauthorization introduced under rules that would allow amendments aimed at remedying the civil liberties problems with the three expiring provisions, or with the still more controversial Patriot expansion of National Security Letter authority, which under current law does not expire. For those just tuning in, the sunsetting Patriot provisions are:
Lone Wolf
So‐called “lone wolf” authority allows non‐citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other “foreign power.” It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”–but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional–and constitutionally significant–distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.