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H.R. 3845: Some Weak Tea. Support Positive Change to the Bill

Yesterday afternoon, Rep. John Conyers released advance copies of H.R. 3845, a bill to reauthorize the Patriot Act provisions regarding national security letters and “sneak and peek” searches again until December 31, 2013.

We know this much to be true: a majority of Democrats and Republicans in Congress seem determined to pass some form of a bill to reauthorize these Patriot Act this year, before the December 31, 2009 sunset of provisions. (Is it really a sunset if the sunset never arrives?) Republicans always enjoy a good expansion of power; Democrats when they’re the ones holding the reins.

With latent majorities in favor of Patriot Act reauthorization and the White House pushing for it as well, congressional civil libertarians such as Rep. John Conyers have cast the battle as one to make the Patriot Act more mild in its violation of 4th Amendment constitutional rights. For example, H.R. 3845 would require roving wiretaps to be clearly made out to target a single individual person, but it would still allow roving wiretaps that cover all sorts of places and circumstances. The 4th Amendment requires warrants to specify a person and a place. Even with H.R. 3845 passed, this Patriot Act power would still violate the constitution.

In another example, H.R. 3845 would forbid warrantless FBI demands for library or bookstore records that “contain personally identifiable information concerning a patron of a bookseller or library.” But under H.R. 3845 the FBI still could obtain personally identifiable information about someone from all sorts of other places, all without the warrant clearly required by the Fourth Amendment. Even with H.R. 3845 passed, this Patriot Act power would still violate the constitution.

And there’s more: under H.R. 3845, people are immediately allowed to go to a judge and contest the gag orders that the FBI has placed on them mandating that they never, ever make mention of the fact that the FBI has come to them and taken away people’s information without a warrant. That’s better than the current state of law, in which a person has to wait a year to ask a judge for permission to utter a word about what the FBI has done. That in turn is better than the original Patriot Act provision, under which nobody could ever go to a judge for permission to open their mouth about what the FBI did to them, ever. But under ALL of these provisions, including H.R. 3845, people are still being ordered to keep their mouths closed and never speak a word about the warrantless demands for information about people that are being regularly issued, leading national Senator Jon Kyl to let words like “I haven’t heard any complaints!” blithely drip from his authoritarian lips during Senate Judiciary proceedings earlier this month. Even if H.R. 3845 passes, we’re still all shut up, prevented from speaking the truth to one another by the government, allowed to speak only at the discretion of the government. The flexibility of government discretion is just widened a bit.

Those are just a few examples: there are many more incremental steps that still preserve Patriot Act powers in that bill. We are to be happy that these crumbs are enough. We are to smile. So expect to see some stiffly smiling faces from nonprofit civil liberties advocates if and when they appear on TV to talk about the Conyers bill over the next few days. Expect to read some forced cheer in the words written by civil liberties bloggers about H.R. 3845. Oh, thank you, thank you for giving me back some of my rights! RT @CongressmanBlatz Ur Support For HR3845 makesmeHORNEE #hope!

Maybe the declarations of unabashed support for H.R. 3845 and similar bills makes some kind of strategic sense. Perhaps the idea is to get a few bits of constitutional protection this year, and then a few more bits in 2013, when the Patriot Act provisions come up again and, not coincidentally, a major presidential election has just passed again. Maybe by 2017, when Patriot Act powers will have been in use for 16 years, we can get some new ombudsman’s report or something! Oh, boy, oh boy!

I guess it makes me unstrategic, I guess it kicks me off the Team, but I just don’t feel like cheerleading for a bill that doesn’t REPEAL these provisions of the Patriot Act and RESTORE constitutional rights, period.

No, I’m not going to cheerlead and fluff up John Conyers’ boxer shorts in gratitude for a few crumbs, though tasty crumbs they may be. Neither am I going to be silent, throw up my hands in the air, and settle down into a grumbly “AH, they’re all corrupt and in 6 years we’ll be cooking our own POO over a fire!” kind of self-defeatist rant.

Here’s my middle ground: instead, when H.R. 3845 comes up for consideration in the House Judiciary Committee and on the floor, I want to pay attention to how people treat it and how they amend it. Do they try to strip civil liberties protections? Do they try to add more civil liberties protections? These are clear steps that indicate lamentable or laudable effort on our politicians’ part, and I’ll laud and lament as appropriate. That’s the approach all of us at Irregular Times took when the Senate Judiciary Committee considered its own version of Patriot Act reauthorization earlier this month.

I expect this means John Conyers isn’t going to invite me to his office for tea. But really, was he ever?

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