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Mark Dorlester

Mark Dorlester

Posted: December 7, 2009 05:48 PM

Good News for Civil Libertarians?

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Good news for civil libertarians ... well, at least the possibility of good news. Ironically, the root of the good news is that Congress sometimes has great difficulty getting things done.

It seems that, although several of the most controversial and draconian provisions of the Patriot Act and the Foreign Intelligence Surveillance Act (FISA) will expire December 31 unless renewed, Congress has been unable to get it's work done on time. Often in such a circumstance Congress simply throws up its hands and reauthorizes existing law as-is.

(If you wish to review Patriot Act/FISA background, see my previous article in Huffington Post.)

Congress has agonized for years over certain controversial provisions of the Patriot Act and FISA. Immediately after 9/11, amid the national terror, humiliation, and panic, Congress enacted the Patriot Act and changes to the 1978 FISA law enabling the executive branch to largely bypass normal judicial review of such things as phone taps and search warrants. Instead, the new laws allowed investigators to issue "National Security Letters" - search warrants - strictly on the basis of the investigator's suspicion, without probable cause, and with no judicial review.

Further, the executive branch empowered itself to search your home, business, financial records, and more without your knowledge - and also empowered itself to send you to prison if you found out about the search and told anyone.

Perhaps all that was understandable, if unconstitutional, as the dust was literally settling in lower Manhattan. But in the 8 years since, Congress has reauthorized and in some cases actually expanded many parts of these draconian laws. Among the long list of additional controversies was the grant of retroactive immunity to telecom companies who cooperated with the wholesale interception of your phone and intenet communications, even if they suspected their cooperation might not be legal.

Each time, Congress has included "sunset" provisions which require that the offending parts of the laws must expire unless renewed at a later date. This at least forces Congress to reconsider their actions several years later. This is one of those "sunset" years.

The House and Senate Judiciary Committees (HJC/SJC) have held hearings and approved somewhat different bills for further consideration - in the House by other House committees and in the Senate by the full chamber. Neither the House or Senate bill restores the full set of constitutional invasions these laws perpetuate, but the House bill (H. R. 3845) at least puts some additional restraints on the National Security Letters, substantially improves reporting, oversight, and audit requirements, and entirely scraps the outrageous "lone wolf" continuous tracking provision. Generally, civil liberties groups much prefer H. R. 3845 to the weaker Senate bill, S. 1692.

Normally, the House and Senate bills would eventually reach a House-Senate Conference where differences would be resolved; the unified bill then would be passed by both houses, and the President would sign it. But with so much on Congress' agenda between now and the scheduled December 18 recess, time has run out.

But, rather than sweep the issue under the rug (again) by simply reauthorizing existing law for yet another 4 or 10 years, Congress is widely reported ready to extend current law for only several months, and resume the substantive process of correcting Patriot/FISA early next year, building upon what had already been accomplished. As House Judiciary Committee Chairman John Conyers (D-MI-14th) stated upon the November 5 HJC approval of H. R. 3845,

" ... we have the opportunity to fix the most extreme provisions of that law and provide a better balance. Our legislation passed today preserves government legal powers where they are needed most, but reins in some of the most problematic aspects of existing law. This bill greatly protects the privacy and freedom of Americans, while preserving critical surveillance powers and operations."

This time, there's hope the slow pace of Congress works to our advantage. To help, sign the petition and open letter to President Obama. As always, the way to have the most influence is to call your Congressperson and Senators and say, "Don't renew the Patriot Act and FISA in a last-minute rush. Continue work on these laws next year, and this time, get it right."