The Senate Judiciary Committee this week is marking up its version of legislation extending and reauthorizing the USA Patriot Act, which was adopted in the weeks immediately after the terrorist attacks of Sept. 11, 2001, and parts of which are scheduled to “sunset” at the end of this year.
The act has been controversial from the day it was passed by overwhelming majorities in both the House and Senate. Some who voted for it in haste then say now that they wish they hadn’t, and others have been trying to reform it by scaling back some of the extraordinary powers Congress gave to the Justice Department in the wake of Sept. 11.
Sen. Larry Craig (R-Idaho) is among those who have sought such reforms and, in the process, won support from activists of the left and right who rarely come together on much of anything. In the current Congress, Craig joined with Sen. Dick DurbinDick DurbinSenate Democrats brace for Trump era Senators introduce dueling miners bills Dems want Sessions to recuse himself from Trump-Russia probe MORE (D-Ill.) among others to sponsor the SAFE Act, a package of reforms that, if adopted, would satisfy many critics of the act.
Most of the serious reformers focus like Craig on a few provisions of the act that they believe are being or could be used far too widely by government law-enforcement officials to violate the traditional rights of ordinary citizens who have nothing whatever to do with terrorism. Their fears were bolstered last week by the admission that 90 percent of the cases in which the act’s powers have come into play thus far have involved “non-terrorist” investigations.
I share the concerns of those who believe the act may go too far in its definition of terrorism, in its freeing of law enforcement from traditional judicial oversight and in authorizing document and other seizures for what might most charitably by called “vague” reasons. History tells us that in times of war or conflict government is all too willing to ask its citizens to trade a bit of their liberty for the hope of greater security. It’s happened during every war we’ve fought, and it happened again when Congress enacted the Patriot Act.
That is not to say that the legislation is fatally flawed or that it represented an irresponsible reaction to the terrorist threat we now face. On the contrary, most of what is included in the act was needed and should be reauthorized, but to contend as some of its supporters do that it is perfect and shouldn’t be looked at critically with an eye to improving it is absurd.
And yet that has been the position of the Justice Department, its defenders in Congress and the administration from the day it passed. Then-Attorney General John Ashcroft even went so far as to imply repeatedly that anyone who even questioned it was somehow “soft” on terrorism, and some of his spokesmen hinted at the lack of patriotism among even the most conservative of its critics. His staffers dismissed concerns raised by many conservatives with assurances that, though the powers it granted government are indeed extraordinary, we have nothing to worry about because the will only be used by the “good guys to go after the bad guys.”
Ashcroft’s successor has approached things a bit differently. Attorney General Alberto Gonzales has met with conservative reformers, smiled and claimed to be open-minded about the whole thing. The past few weeks have revealed, however, that his apparent reasonableness has been little more than an act. He and his people have fought not just to thwart the reforms he earlier suggested might be reasonable but to extend the act by, for example, giving the FBI the authority to issue what are called “administrative subpoenas,” which many in Congress say are clearly unconstitutional in a criminal context.
Congress, to its credit, has refused to go along with this one. Both House Judiciary Committee Chairman Jim SensenbrennerJames SensenbrennerHouse group seeks alternatives on encryption fight Congress should learn from states on civil asset forfeiture GOP rep presses Trump to meet with Dalai Lama MORE (R-Wis.) and his Senate counterpart, Arlen Specter (R-Pa.), have refused to include administrative subpoenas in their reauthorization bills, and each is producing a bill that addresses at least some of the concerns raised by the reformers. And each has included new “sunset” provisions over Justice Department objections so that a future Congress will be able once again to review the act to see how it is used or abused.
The Senate bill is better than the House bill, and both could be improved by incorporating the provisions of the reform legislation sponsored by Craig, but both chairmen seem determined to resist the pressure simply to look the other way as more and more power is ceded to government without regard to either the Constitution or the traditions of a free people.
And for that they deserve our thanks.
Keene, chairman of the American Conservative Union, is a managing associate with Carmen Group, a D.C.-based governmental-affairs firm (www.carmengrouplobbying.com).