Republican negotiators in the House of Representatives and the Senate reached
an agreement last week for the renewal of the USA Patriot Act, including the permanent
extension of most of the provisions that had been set to expire by the end of
this year. Once it is passed into law, the bill will extend sweeping attacks on
democratic rights and consolidate a vast expansion of the powers of the state
to spy on law-abiding individuals.
The bill upholds the right of the Federal Bureau of Investigation to order
both public and private institutions to hand over their records on designated
individuals, without the targeted people being informed of this government intrusion
into their personal affairs. The FBI can issue so-called “national security
letters” to banks, book stores, libraries, hospitals, Internet providers
and other institutions requiring them to hand over the most sensitive and private
information, even though the FBI has no evidence that the targeted individuals
have committed or are about to commit a crime. No court order is required for
such letters to be issued, and the institutions that receive the letters are
not permitted to reveal their existence.
The Orwellian dimensions of this police-state provision were described by the
Washington Post in a November 6, 2005 article as follows: “The records
[a national security letter] yields describe where a person makes and spends
money, with whom he lives and lived before, how much he gambles, what he buys
online, what he pawns and borrows, where he travels, how he invests, what he
searches for and reads on the Web, and who telephones or e-mails him at home
and at work.”
The House-Senate agreement on extending the Patriot Act was reached after pressure
was applied by the White House to resolve differences between bills passed this
summer by the two chambers. While some Senators from both parties have raised
objections to the final version, there is bipartisan agreement on the necessity
to renew the Patriot Act and permanently extend most of its provisions. The
bill is set to come to the floor of both the House and the Senate this week
for a final vote before being signed into law by President Bush.
When the Patriot Act was passed in October 2001, 16 of the more controversial
measures had “sunset” provisions, i.e., they were automatically
to expire by the end of 2005 unless renewed by Congress. The new bill would
make permanent fourteen of these measures, while the other two would be extended
for four years. House Republicans had been holding out for a seven-year extension,
whereas the Senate had unanimously passed a four-year provision. Republican
House leaders relented after the administration intervened to insure passage
of a bill.
The agreement, known as the conference report, leaves most of the remaining
provisions largely unchanged. Six senators, three Democrats and three Republicans,
backed by certain corporate interests, including the US Chamber of Congress,
have announced their opposition to the so-called “compromise” bill.
These senators have pushed for modest amendments and worked to scuttle a previous
agreement that was announced last month.
The provision expanding the powers of the FBI to obtain financial and other
records by means of national security letters was not one of the sixteen that
had to be renewed, as it was made permanent under Section 505 of the original
act. The Washington Post revealed in its November 6 report that the FBI has
issued more than 30,000 national security letters a year to businesses and other
institutions since 2001, largely to obtain information on people who have no
record of involvement in terrorist acts. This is a hundredfold increase over
Some businesses are concerned about this measure because of the onerous demands
it places on companies to provide financial records of customers. The conference
report reportedly includes an amendment that grants businesses the right to
challenge the letters in court. However, the court must accept as “conclusive”
any government claim that disclosure of the investigation would damage national
The American Civil Liberties Union noted, “These provisions infringe
on the separation of powers, by purporting to instruct federal courts that they
must accept as conclusive a certification provided by the Executive Branch regarding
fundamental First Amendment rights.”
Under the new agreement, the individual whose records are being sought still
has no right to be informed of the search, since the letter is sent not to him
or her, but to the institution from which the records are being sought.
In some ways, the new bill would make this provision of the Patriot Act even
more egregious. It criminalizes any disclosure of a security letter “with
the intent of obstructing justice,” and mandates a five-year prison sentence
for this offense. A one-year prison sentence for anyone who discloses the existence
of a national security letter (regardless of intent) is not included in the
agreement, though it was part of the original House version.
Of the two measures that will be extended for four years, one expands the power
of the government to obtain records through the Foreign Intelligence Surveillance
Act (FISA). When the Patriot Act was originally passed, this provision received
more attention than the national security letters, though in subsequent years
it has been used less frequently. In also includes the power to extract records
from libraries, bookstores and businesses, but requires the FBI to first obtain
the approval of a secret FISA court.
The conference report includes a cosmetic “check” on the FBI, in
the form of a requirement that the FBI provide a FISA court with a “statement
of fact” that there are “reasonable grounds” to believe that
the records are necessary for a terrorism-related investigation.
The other Patriot Act measure that will be extended for four years allows for
roving wiretaps, i.e., wiretaps that are not tied to any particular phone or
locality. This gives the government a broad license to tap multiple phones on
the grounds that a criminal suspect may use them.
A separate provision, not part of the original Patriot Act, which allows the
FBI to track suspected “lone wolf” terrorists is also set to be
renewed for four years. This allows the government to target virtually any individual,
without providing any evidence of a connection to a terrorist organization or
The original Patriot Act granted the government broad powers to carry out “sneak
and peak” searches of criminal suspects without informing them. The government
is required to show only that notice of the search could “jeopardize an
investigation” or “unduly delay a trial.” The new bill would
require the government to inform the subject of such a search within 30 days
of the event. The Senate version had called for a seven-day period, while the
House version gave the government 180 days before it had to tell the target
that his house, office, vehicle or some other personal belonging had been searched.
Both versions allowed the government to appeal to a court for an extension.
The rest of the over 300-page Patriot Act will remain largely as is, including
the very broad definition of “domestic terrorism” to include wide
swaths of political activity. There have been several reports over the past
four years of government spying on antiwar and other political groups opposed
to the Bush administration.
Also remaining in place is a measure giving the FBI increased leeway to use
secretly recorded conversations in criminal prosecutions. This power was used
in the politically motivated legal witch-hunt of Palestinian activist Sami Al-Arian,
who was acquitted by a Florida jury of most charges earlier this month. The
jury delivered a hung verdict on the other charges.
Six Senators—Democrats Russell Feingold of Wisconsin, Richard Durbin
of Illinois and Ken Salazar of Colorado, and Republicans Larry Craig of Idaho,
John Sununu of New Hampshire and Lisa Murkowski of Alaska—have declared
their opposition to the bill. They are championing the original Senate version,
which passed the Senate unanimously and differs only in minor respects from
the current bill.
Feingold has threatened to filibuster, while Patrick Leahy of Vermont, the
ranking Democrat on the Senate Judiciary Committee, has proposed a three-month
extension to allow Congress to work out a more bipartisan compromise.
The bill that ultimately emerges will represent a bipartisan agreement on an
unprecedented and permanent gutting of democratic rights and the legal framework
for authoritarian forms of rule.