Udall should continue his fight to reform the Patriot Act
Kudos to Sen. Mark Udall for his principled fight to amend the Patriot Act to include more protection for civil rights.
Though unsuccessful, the effort by Udall and his colleagues highlights some of the major flaws in national security legislation enacted following 9/11. They also make a persuasive case for reforming some provisions of the Patriot Act.
“I opposed the original passage of the Patriot Act after 9/11 based largely on my belief that Congress was granting powers to the executive branch that would lead to the abuse of Coloradans’ privacy rights and that shielded the government from accountability,” Udall said. “In the 10 years since Congress passed the Patriot Act, there has been little opportunity to improve it.”
Sen. Dick Durbin, D-Ill., voted for the Patriot Act in 2001, “while ground zero was still burning.” But, he told the Washington Post, “I soon realized it gave too much power to government without enough judicial and congressional oversight.”
Udall joined with Sen. Ron Wyden, D-Ore., to offer an amendment that would enable the American people to have a better idea of what their government is doing secretly in the name of national security.
The issue before Congress was not the original Patriot Act passed after 9/11, but three amendments to it. Two were passed later that year and one in 2004. Adopted with little debate, these laws, because of their potential threat to civil liberties, were required by Congress to be renewed periodically.
The three provisions were, first, the right of the government to demand “any tangible thing,” including business records, credit reports, medical records and even records of library patrons without any evidence of connection to terrorism or any wrongdoing.
Second is the broad authority given the federal government to place “roving John Doe wiretaps” on essentially any phone or electronic communication with little oversight.
Third is the so-called “lone wolf” provision that can be used to conduct surveillance on individuals who have no connection to terrorist organizations or other wrongdoing.
“These three provisions,” Udall said, “are troubling because they are ripe for abuses that involve expansive government surveillance of innocent people, even though common sense fixes and protections exist if only we were allowed to debate them.”
As the American Civil Liberties Union pointed out, “despite the many amendments to these laws since 9/11, Congress and the public have yet to receive real information about how these powerful tools are being used to collect information on Americans and how that information is being used.”
Despite numerous interpretations of the Patriot Act, the official government interpretation of the law is classified. “A significant gap has developed now between what the public thinks the law says and what the government secretly claims it says,” Wyden said.
Sen. Jeff Merkley, D-Ore., who voted against extending the amendments, issued a statement saying, “I am outraged that the expiring provisions of the Patriot Act have been extended with little or no debate. These provisions give broad authority to access our personal information, including phone, email and library records, in secret, with virtually no checks or balances. The government won’t even tell the American people how it interprets these provisions, or whether it sees any limits on its authority at all.”
Led by Kentucky’s libertarian Republican Sen. Rand Paul, who held up the bill until the Senate almost missed its deadline, four Republican senators voted with 19 Democrats against the bill. “We shouldn’t be fearful of freedom,” Paul said. “We shouldn’t be fearful of individual liberty.”
The Democrats did win an agreement to hold Senate Intelligence Committee hearings on the Justice Department interpretations of the limits on information collection under the Patriot Act.
Wyden has said he will reintroduce the bill in the fall if the hearings are not successful. Since these hearings will be secret, they may do little to reassure the public that the government is not abusing its powers for secret surveillance against its own citizens.
Regardless the outcome of the Senate Intelligence Committee hearings, Udall and his colleagues should continue to fight for the public debate on these laws that Congress has avoided for 10 years.
A secret government is not a government of the people.