Durbin, Feingold and Specter Warn Against Patriot Act Extension

As H.R. 3845, a bill to extend the worst provisions of the Patriot Act, moves toward markup in the House of Representatives this week, it’s a good time to take some lessons from the markup of the equivalent bill in the Senate, S. 1692. A Senate Judiciary Committee report on S. 1692 is mostly self-congratulatory, with the committee’s leadership patting itself on the back and making excuses for voting against amendments to the bill that were designed to protect Americans’ constitutional rights.

However, there is also a short minority report within the larger report. In that minority report, senators Russ Feingold, Dick Durbin and Arlen Specter issue a warning:

“There can be no doubt that significant statutory changes are needed. In 2007, the Department of Justice Inspector General concluded in a lengthy report that there had been ‘widespread and serious misuse of the FBI’s national security letter authorities. In many instances, the FBI’s misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies.’ The USA PATRIOT Act vastly expanded the National Security Letter (NSL) statutes, and the government can issue NSLs without judicial review. The 2007 Inspector General report stated that 22% of NSL requests were not reported in the FBI tracking database. It further identified more than 700 instances in which the FBI improperly obtained telephone toll billing records through the use of ‘exigent letters.’ A recent FBI briefing conveyed that after an internal review, the FBI identified 4,379 unique numbers that were contained in either exigent letters or so-called ‘Blanket NSLs’ (which were issued in an attempt to provide legal process for information previously obtained via exigent letters or oral requests). Of those, 610 were purged because the FBI could not reconcile the data with any appropriate legal process. The Inspector General also documented that the use of NSLs has been increasing, particularly to gather information on U.S. persons. According to the 2008 Inspector General report, the percentage of NSL requests generated from investigations of U.S. persons grew from 39% in 2003 to 57% in 2006. During this same time frame, NSL requests relating to non-U.S. persons remained relatively stable, while the number of requests relating to U.S. persons grew from 6,519 in 2003 to 11,517 in 2006.”

More briefly: The spy powers of the Patriot Act have been thoroughly and increasingly abused. Innocent Americans have been targeted. S. 1692 as assembled by the Senate Judiciary Committee does not adequately reform the Patriot Act, and does not stop the abuse of Americans’ constitutional rights.

The rest of the minority report hems and haws about some good points in S. 1692, along with the bad points. I understand that’s how legislators communicate with each other, but it’s difficult for the American public to follow the details.

The movement to reform the Patriot Act has not been successful so far. From what I can see, the lack of success comes as a result of its nuanced message: That the Patriot Act should be reformed, but in certain ways, using certain sorts of technical language, instead of other language that masquerades as reform but is inadequate.

A more successful message would draw a clear line in both the Senate and the House: The Patriot Act is unconstitutional. It should not be renewed – period. I know that it’s not in line with what many civil liberties activists are doing right now, but my opinion is that a simple message gets more attention. Readers, if you call your senators and representative, here’s what I think they need to hear:

1. I do not accept the Patriot Act’s violations of my constitutional rights.
2. No provisions of the Patriot Act should be renewed.
3. Please vote against S. 1692 (Senate) or H.R. 3845 (House).