When President Obama was Senator Obama, he had deep reservations about the expansion of executive authority. Now that he wields that authority, he appears more favorable to broad presidential powers. Many of his former colleagues, however, have had no such change of heart.
Add the Patriot Act to the list of grievances that the president now needs to work out with his party. When Department of Justice officials came to Congress Wednesday to push for a full-scale reauthorization of the expiring provisions in the USA PATRIOT Act, they found more support from Republicans than the committee's Democrats.
"I don't believe that subsequent events have proven that there have been any abuses of the act to date," Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, said shortly before the DOJ representatives discussed some of the documented FBI abuses of the PATRIOT Act. "The provisions of this act did not create new or unusual powers for the federal government," Sessions argued, citing subpoena powers of the IRS and other government agencies.
Senate Democrats made more of an effort to challenge the Justice officials. At one point, longtime PATRIOT Act critic Al Franken (D-Minn.) read the Fourth Amendment aloud from the dais, in an effort to underscore how drastically Obama's position has shifted in less than a year. A year ago, of course, Franken was not a legislator, but a political comedian and former Air America host.
"This is surreal," muttered Assistant Attorney General David Kris.
In the House, Republicans likewise sided with the Obama administration against Democrats. "I don't feel we should break something that doesn't need fixing," Rep. James Sensenbrenner (R-Wis.) said at a House Judiciary Committee hearing Tuesday, dismissing complaints about the abrogation of civil liberties as "hyperbole" that "has not been borne out in litigation." Meanwhile, Judiciary Chairman John Conyers (D-Mich.) compared Obama DOJ officials to their Bush-era predecessors. "You sound like a lot of people who came over from DOJ before," Conyers told Todd Hinnen, the deputy assistant attorney general who made the case for blanket PATRIOT Act reauthorization Tuesday.
None of these lawmakers, of course, propose to completely put an end to the act. Even civil-liberties crusader Sen. Russ Feingold (D-Wis.) -- the lone vote against the PATRIOT Act back in 2001 -- is proposing its renewal but with additional checks on executive-branch power, which the White House generally opposes.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said at Wednesday's hearing that Democrats would not rubber-stamp the reauthorization. "We all want to be safe. We all want to catch criminals. That's not the issue. The issue is each of us is entitled to our own privacy," he said. "We have another chance to get it right."
Leahy introduced a bill Tuesday with Ben Cardin (D-Md.) and Ted Kaufman (D-Del.) that would modestly expand judicial review and Congressional oversight of the powers granted to the executive branch. The chairman's bill also calls for new audits by Justice Department Inspector General Glenn Fine on the possible abuse of so-called "national security letters," which allow a wide range of government spying on individuals given what both Fine and Kris acknowledged at Wednesday's hearing was a low standard of evidence.
"The cards are pretty stacked" in favor of intelligence agencies who wish to spy on Americans under current law, Leahy said. His bill, he said, incorporates elements of the JUSTICE Act, a stronger reform package released at the end of last week by Feingold that is cosponsored by leading Sen. Dick Durbin (D-Ill.) and eight other Democrats. The JUSTICE Act would add privacy-rights protections to every section of the PATRIOT Act, not just the expiring provisions, and would repeal the Obama-supported retroactive legal immunity granted last year to telecommunications companies that complied with government spying requests.
There would be greater support for the JUSTICE Act if the government was more forthcoming about abuses of the PATRIOT Act, said Feingold. Before illustrating how law-enforcement agencies have abused the spying powers supposedly restricted to terrorist threats, Kris claimed that the widespread FBI abuses detailed in Fine's March 2007 report no longer need to be addressed.
"I think the problems that Mr. Fine found are legitimate. I think they've been remedied," Kris said. But Fine said that while the FBI has reduced its fraudulent use of the PATRIOT provisions, "There does need to be more significant vigilance."
Between the House and Senate hearings, news broke of long-awaited DOJ changes to state secrets policy that would bring the executive branch roughly in line with the State Secrets Protection Act pending in the Senate. Under the new language, Attorney General Eric Holder and a team of other Justice Department lawyers -- rather than a single official -- will have to sign off on any attempt by the military or intelligence agencies to withhold information on the grounds that it would significantly damage "national defense or foreign relations."
"I'm pleased that the Attorney General is moving in the right direction," Leahy said at Wednesday's Senate hearing, adding that he intends to pay close attention to the application of the new policy.
But that doesn't mitigate the need for PATRIOT Act reforms, Leahy said. "You and I are going to be talking about this as we go forward," he told Kris.
"I look forward to that," Kris quipped.