It’s PATRIOTic to Panic!

According to Politics Daily columnist Patricia Murphy vital provisions of the PATRIOT Act are in danger of expiring! Which means that scary terrorists could already be hiding under your bed ZOMG!!!1!!1!


Let’s take a slow deep breath or two, shall we? As I’ve been discussing here for some time, there are three national security surveillance provisions due to sunset at the end of this year. It has also been clear for weeks now that, with health care taking center stage, Congress was unlikely to come to an agreement on the details of reform and reauthorization before recess. And while Politics Daily may have just “learned Thursday” that congressional advocates for civil liberties reforms would be comfortable with a temporary renewal of the expiring provisions to allow more extended debate, anyone who’s been paying the slightest bit of attention has heard them say as much all along. Which, given the tenor of press coverage, is a good thing: The easiest thing to do would be a straight reauthorization that avoided much‐​needed changes and took an issue that tends to make Democrats skittish off the table. But the chance that legislators will simply allow the expiring provisions to lapse is, to a first approximation, zero. The brevet renewal will probably be dropped into the Defense Appropriations Bill before Congress this week.


Since the article dwells at some length on the Fort Hood shootings and the risk of homegrown terrorism, it’s worth reiterating: The never‐​invoked “Lone Wolf” provision, which is among those expiring, does not apply to actual “homegrown terrorists”—that is, permanent residents or citizens like Nidal Hassan. Those people can still be surveilled using ordinary Title III criminal wiretap warrants. Nor, despite what the article claims, would law enforcement “lose the ability” to conduct roving wiretaps or demand business records even if Congress somehow failed to pass a reauthorization. Roving taps would remain available under the criminal statute, though under a slightly heightened standard—which, again, is what you’d have to use anyway to go after a genuine homegrown terrorist who wasn’t a member of a foreign group like al‐​Qaeda. Ordinary FISA wiretaps, requiring investigators to specify the phone lines and Internet accounts covered, would still be available. (These represent the overwhelming majority of the thousands of FISA warrants issued each year.) The “business records” provisions of the Foreign Intelligence Surveillance Act similarly predates PATRIOT, and would remain in existence for use against actual “agents of a foreign power,” though again, the standard for issuance would be raised. A plethora of other mechanisms for obtaining third party records—grand jury subpoenas, National Security Letters (issued without that pesky judicial oversight), court orders—would remain in place.


So, in sum: If by some unfathomable happenstance these few provisions were allowed to lapse for a few months while Congress hashed out the details of a renewal and reform bill, there’s no reason to think it would be an especially serious problem given the array of new tools we’ve made available to terror investigators over the past eight years. But even if you’re the nervous sort, the point is moot, because there is no realistic chance that the PATRIOT provisions in question will be allowed to lapse. There never has been: A temp extension has quite clearly been on the table all along. Though I suppose that’s not the kind of headline that drives clicks.