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:
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.
Roving wiretap authority allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be “described” rather than identified. Courts have stressed this requirement for identification of a named target as a feature that enables criminal roving wiretaps to satisfy the “particularity” requirement of the Fourth Amendment. Patriot’s roving taps, by contrast, raise the possibility of “John Doe” warrants that name neither a person nor a specific “place” or facility--disturbingly similar to the “general warrants” the Founders were concerned to prohibit when they crafted the Fourth Amendment. Given the general breadth of FISA surveillance and the broad potential scope of online investigations, John Doe warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates would be fine with making this authority permanent if it were simply modified to match the criminal authority and foreclose the possibility of "John Doe" warrants by requiring either a named individual target or a list of specific facilities to be wiretapped.
Section 215 expanded the authority of the FISA Court to compel the production of business records or any other “tangible thing.” While previously such orders were limited to narrow classes of businesses and records, and required a showing of “specific and articulable facts” that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of “reasonable grounds” to believe records are “relevant” to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism. And the recipients of these orders are barred from Proposals to restore some of the previous checks on this power--requiring some demonstrable connection to terroris--initially received bipartisan support last year, but were torpedoed when the Justice Department objected that this limitation would interfere with a secret “sensitive collection program.” Several senators briefed on the program have expressed concern that this sweeping collection authority was being reauthorized without adequate public understanding of its true purpose.
So those are the sunsetting provisions--though a lot of the debate last year very justifiably centered on the need to reform National Security Letters, which we know to be constitutionally defective, and which have already been subject to serious abuses. One reason reform keeps getting postponed is that Congress is busy and tends not to make time for these issues until the sunset deadlines are right around the corner--at which point a reliable band of pundits and legislators imply that absolute bedlam will ensue unless every single surveillance authority is extended--meaning reform will have to wait until later, at which point it will be an emergency all over again. Once you start looking at the numbers, though, all these Chicken Littles begin to look faintly ridiculous.
The Lone Wolf provision is such an essential intelligence tool that it has never been used. Not a single time. And again, by the terms of the statute, it only applies under circumstances where a criminal wiretap warrant would already be available if Lone Wolf authority didn't exist. Roving authority is granted by the FISA Court an average of 22 times per year, and in many (if not most) of those cases it never actually has to be used--surveillance is limited to named facilities. To put that in context, the FISA court issued 1,320 electronic surveillance orders in 2009, and that was the first time in 5 years the number fell below 2,000. So we're talking about maybe 1 percent of FISA surveillance, which judging by internal oversight reports, is a good deal less than the portion that ends up sitting untranslated for months anyway. Similarly, there were 21 business records orders under §215 issued in 2009--and remember, that authority doesn’t disappear if this provision sunsets, it just reverts to its narrower, pre–Patriot version, where the court needs to see actual evidence that the records have some connection to a suspected terrorist. Surveys by the Inspector General’s office found no instances in which a major case development resulted from 215 information. The idea that we'd somehow be in grave danger if these provisions lapsed for a few months just doesn't hold up, but there's no reason Congress can't pass a two-month extension while they consider some of the reforms already on the table, just as they did last year.
So let's stop living in a state of perpetual panic. Some of these provisions we'd be better off without. Some, like roving wiretaps, just need minor tweaks to close loopholes for misuse. Some--I'm looking at you, National Security Letters--require substantial reform. Many of these changes ought to be common sense, and have attracted bipartisan support in the past. But let's stop kicking the can down the road and saying we'll debate the proper limits on the surveillance state when there's time. It's important enough that Congress can make time.