It is nearly a decade now since Congressresponded to the terror attacks of 9/11 by granting its hasty approval to the USA Pa-triot Act,
a sprawling piece of legislationcomprising hundreds of amendments toan array of complex intelligence and law en-forcement statutes.
noted at the time, “members of both par-ties complained they had no idea what they were voting on, were fearful that aspects of the . . . bill went too far—yet voted for it any-way.”
Recognizing that Patriot had signifi-cantly expanded government surveillanceauthorities with minimal deliberation, Con-gress established expiration dates for 16of the Act’s most controversial provisions.It similarly established a sunset for the so-called “Lone Wolf” provision of the Intelli-gence Reform and Terrorism Prevention Actof 2004, which allowed non–U.S. persons tobe monitored under the aegis of the ForeignIntelligence Surveillance Act even if they were unaffiliated with any foreign power.
In 2005, Congress made 14 of those provi-sions permanent, but retained sunsets forthe Lone Wolf provision, as well as Patriot Act provisions authorizing the secretive For-eign Intelligence Surveillance Court to issuewarrants for “roving wiretaps” and broadorders compelling the production of busi-ness records or any other “tangible thing.”
In the process, legislators added a number of safeguards aimed, in part, at assuaging theconcerns of civil libertarians.
In late 2009, as the sunset date loomed,the judiciary committees of both the Houseand Senate held extensive hearings to con-sider how these new powers had been usedand what modifications to the existing stat-utes might be appropriate.
Additionally, inresponse to a series of increasingly damningreports from the Justice Department’s Officeof the Inspector General, showing large-scaleand systematic abuse of the Patriot Act’s ex-panded authority to issue National Security Letters,
Congress held further hearings fo-cused on these powerful tools, which allow the Federal Bureau of Investigation to de-mand a wide array of telecommunicationsand financial records without judicial ap-proval.
The hearings and associated debate gen-erated both substantial press coverage
andan array of substantive reform bills.
Ulti-mately, however, and despite a temporary short-term extension aimed at allowingfurther debate, Congress passed—and Presi-dent Obama signed—a one-year reauthori-zation of the expiring provisions withoutmodification.
The rationale for the limited reauthori-zation was that the intervening time wouldbe used for fruitful deliberation on neededreforms, but that hope was not borne out.Until February, there had been almost nofurther debate in Congress concerning theexpiring Patriot provisions or the pressingneed for National Security Letter reform,and press attention had been correspond-ingly scant. At least some legislators, however, appearto be growing weary of these deferrals. Thesame one-year reauthorization that easily garnered the two-thirds majority requiredfor fast-track passage in 2009 fell short thisyear, to the surprise of many observers.
Instead, Congress approved an extensionof the expiring provisions for just threemonths, with leaders in both parties pledg-ing that there would now—finally—be seri-ous deliberation on the need for substantivereform.
As of this writing, most of the legislativeproposals that have been advanced involveeither long-term reauthorization withoutalteration or modest amendments. Sen. Di-anne Feinstein (D-CA) supports reauthori-zation through the end of December 2013,along with an extension of the controversialFISA Amendments Act of 2008 to the samedate,
while Sen. Chuck Grassley (R-IA) isseeking permanent reauthorization of theexpiring provisions.
Sen. Patrick Leahy (D-VT), meanwhile, has reintroduced the
The Patriot Actsignificantly expandedgovernmentsurveillanceauthoritieswith minimalCongressionaldeliberation.