It will not shock readers to hear that quite often legislation on Capitol
Hill is not as advertised. When Congress wants to do something particularly
objectionable, they tend give it a fine-sounding name. The PATRIOT Act is perhaps
the best-known example. The legislation had been drafted well before 9/11 but
was going nowhere. Then the 9/11 attacks gave it a new lease on life. Politicians
exploited the surge in patriotism following the attack to reintroduce the bill
and call it the PATRIOT Act. To oppose it at that time was, by design, to seem
unpatriotic.
At the time, 62 Democrats voted against the Act. On the Republican side there
were only three no votes: former Rep. Bob Ney (R-OH), former Rep. Butch Otter
(R-ID), and myself.
The abuses of the Constitution in the PATRIOT Act do not need to be fully
recounted here, but Presidents Bush and Obama both claimed authority based
on it to gut the Fourth Amendment. The PATRIOT Act ushered in the era of warrantless
wiretapping, monitoring of our Internet behavior, watering down of probable
cause, and much more. After the revelations by whistleblower Edward Snowden,
we know how the NSA viewed constitutional restraints on surveillance of American
people during the PATRIOT Act period.
After several re-authorizations of the PATRIOT Act, including some cosmetic
reforms, Congress last October unveiled the USA FREEDOM Act. This was advertised
as the first wholesale PATRIOT Act Reform bill. In fact, the House version
was watered down to the point of meaninglessness and the Senate version was
not much better. The final straw was the bill's extension of key elements of
the PATRIOT Act until 2017.
Fortunately, last week the USA FREEDOM Act was blocked from further consideration
in the US Senate. The procedural vote was significant and important, but it
caused some confusion as well. While some well-meaning pro-privacy groups endorsed
the FREEDOM Act as a first step to reform, some anti-liberty neoconservatives
opposed the legislation because even its anemic reforms were unacceptable.
The truth is, Americans should not accept one more extension of the PATRIOT
Act and should not endorse its continued dismemberment of our constitutional
liberties. If that means some Senators vote with anti-liberty colleagues to
kill the extension, we should still consider it a victory.
As the PATRIOT Act first faced a sunset in 2005, I had this to say in the
debate over whether it should be re-authorized:
"When Congress passed the Patriot Act in the emotional aftermath of the September
11th terrorist attacks, a sunset provision was inserted in the bill that causes
certain sections to expire at the end of 2005. But this begs the question:
If these provisions are critical tools in the fight against terrorism, why
revoke them after five years? Conversely, if these provisions violate civil
liberties, why is it acceptable to suspend the Constitution for any amount
of time?"
Reform is often meant to preserve, not repeal bad legislation. When the public
is strongly opposed to a particular policy you will almost never hear politicians
say "let's repeal the law." It is always a pledge to reform the policy or law.
The USA FREEDOM Act was no different.
With the failure of the FREEDOM Act to move ahead in the Senate last week,
several of the most egregious sections of the PATRIOT Act are set to sunset
next June absent a new authorization. Congress will no doubt be under great
pressure to extend these measures. We must do our very best to make sure they
are unsuccessful!
