Patriot Act: Congress Shouldn't Rush to Judgment (Again)
Congress passed the USA Patriot Act six weeks after the terrorist attacks of September 11, 2001. The understandably intense fear and panic gripping the nation in those early days following the attacks fueled the near-record speed with which dramatic alterations to U.S. surveillance law were drafted, debated and made law. Many members of Congress -- myself included -- were concerned that the bill had not been adequately examined or thoroughly considered and managed to attach sunsets to the bill's most controversial provisions. The idea was that these provisions would be more thoughtfully debated at a later, less panicked time. The current expiration date for these provisions is December 31, 2009.
While there are several controversial provisions in the USA Patriot Act, the coming debate is likely to center around the "business records" provision. Prior to 9/11, if the FBI or another government agency was conducting an intelligence investigation and wanted to obtain an individual's personal records from a bank, hospital, library, retail store or whatever institution was holding them, the government had to have evidence indicating that the person whose records were sought was a terrorist or a spy. The Patriot Act changed the law to authorize the government to collect any records deemed "relevant to an investigation."
The consequences of this change are tremendous, as there are limitless interpretations of the word "relevant." And while it is known as the "business records" provision, it actually permits the collection of "any tangible thing" (such as blood or DNA samples) as long as it can be called "relevant."
I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence -- classified or otherwise -- that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security. Yet as Congress considers whether to reauthorize this standard -- written in a rush to judgment eight years ago -- some will undoubtedly argue that Congress should just trust that the provision is essential and blindly sign-off on reauthorization. I disagree. While "just trust us" has passed as informed national security debate in this country for eight years, it hasn't resulted in good national security policy. Indeed, the shortage of serious discussion of intelligence matters has frequently resulted in counterterrorism programs that are much less balanced and effective than they could and should be.
For example, on December 16, 2005, I -- like most Americans -- learned about the Bush Administration's warrantless wiretapping program from the New York Times. I -- like most Americans -- was stunned to learn that this program had been secretly operating for years in what I and many others view to have been clear violation of U.S. law. But I -- unlike most Americans -- am one of fifteen members of the U.S. Senate Select Committee on Intelligence. The Executive Branch has a legal obligation to keep me and my fourteen colleagues "fully and currently informed" of ongoing intelligence activities, not so we can give intelligence agencies a hard time, but rather to ensure that these programs are properly funded and operating both legally and effectively. The Bush Administration, however, never gave me a chance to help them craft an effective wiretapping program. Instead, they put together the highly imperfect, legally dubious program that I eventually learned about by reading the newspaper.
What my colleagues and I would later learn is that in the panicked days immediately following the terrorist attacks of September 11, 2001, a handful of Bush Administration officials made the unilateral judgment that existing surveillance law would slow down the government's ability to track suspected terrorists. Instead of working with Congress to update the law, these officials decided to work outside the law and create a warrantless wiretapping program that they hid from Congress and the public. It is unclear how long they thought they could hide a large, controversial national security program of this sort, but once the program was begun, the decision to carry it out was never adequately reevaluated. As the Inspectors General's report revealed last summer, this obsession with secrecy actually made Americans less safe, as the program was kept so secret that even when it managed to yield intelligence, tight classification restrictions sometimes prevented information from being shared with officials who needed it.
This wasn't the only side-effect of a handful of Bush Administration officials unilaterally deciding that they alone knew what was best for the country. Congress eventually modified relevant surveillance law, but only after years of divisive debate over warrantless wiretapping and retroactive immunity that left the American people less trustful of their government and undoubtedly made private companies less likely to cooperate with legitimate government activity.
This isn't the only program where secrecy and a rush to judgment resulted in national security policy that might as well have been drawn up on the back of an envelope. (The secret detention and coercive interrogation program is another obvious example, but there are other examples.) In each case, officials operating years after the 9/11 attacks failed to recognize that informed consideration of national security programs could be beneficial to national security. Instead officials spent their energy hiding and defending the hurried decisions that were made at a time of national panic, ultimately resulting in more difficult policy challenges down the road.
Congress has an opportunity to reverse this trend in its consideration of the Patriot Act's business records provision.
While the Obama Administration has taken laudable steps to release some information about how certain provisions of the Patriot Act have been used, more needs to be done for Congress to have an informed debate on this issue. Specifically, there is classified information that the public and the majority of my colleagues have not seen that, in my judgment, is essential to understanding the full scope of this issue. I and other senators have raised this problem with the Executive Branch in classified correspondence, and I hope that this information will be declassified soon. If it is not, however, I believe that the Senate should debate it in closed session to ensure that all senators are fully informed before casting their vote.
Striking a balance between protecting Americans' security and protecting American rights and freedoms is not always easy, but members of Congress have an obligation to try. While it is unfortunately too late to undo much of the harm done over the last eight years, Congress should learn from past mistakes and stop rushing to judgment. It is because these policies are so important that Congress must take the time to get them right.
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But you voted for the Act and didn't speak up when a different bill than the one that you voted for was surrepticiously slipped in at the last minute.
Why did you vote for a bill that you did not read? And why did you not object about the bait and switch of a new bill?
"And while it is known as the "business records" provision, it actually permits the collection of "any tangible thing" (such as blood or DNA samples) as long as it can be called "relevant."
The (current) Relevance Test: If the spooks want it, it's relevant!.
"Striking a balance between protecting Americans' security and protecting American rights and freedoms is not always easy, but members of Congress have an obligation to try." heh, heh, heh, he...
Sen. Wyden...I am Proud to have You represent us, here, in Oregon! We are Fortunate!
Thank you, Sir! You epitomize Service, To the People, For the People.
Hasn't there been some evidence that Original FISA was massively broken before 9/11/2001, and that it's also been used for political purposes, both before and after?
It greatly seems 'telecom company immunity' for these crimes was ONLY passed for the purpose of obstructing ANY investigation into exactly who in OUR Government originally issued the CRIMINAL 'orders'.
'it's also been used' = unwarrented, unsupervised, undocumented and illegal wire-tapping of ANY kind
It's your narrative, Why don't you provide us with the evidence?
Let's face it, Senator, to The People it looks VERY Unconstitutional to be modifying or suspending Rights without a Constitutional Amendment, and the REQUIRED 2/3 vote by the States. Yet CONgress and the last preznutz repeatedly played conveniently ignorant of their 'charter' when it suited immediate needs, knowing Law remains Law until challenged in the SCOTUS on Constitutional grounds.
The worst part is their pretense - that CONgress somehow doesn't understand their perfidy.
There's not a 'snowball's chance' of that, sir.
That being said, thank you for your support of National Health Care Reform.
Dick Cheney surrendered my rights,
I want them back!
Section 215 - the business records provision -- creates a chilling effect on mental health treatment, where privacy is fundamental. The definition of "business records" is so vague that information that psychotherapists are legally and ethically required to keep could be at risk under Section 215. People seeking mental health care are an "invisible" constituency because they aren't a social network and usually don't join together as activists. Therapists for Peace and Justice has been leading the way in alerting the public about this little understood problem with section 215. Read more here:
Your Privacy Matters: Daniel Ellsberg, the USA PATRIOT Act & You
http://www.opednews.com/articles/Your-Privacy-Matters-Dani-by-Michael-Anne-Conle-091006-57.html
how'd you vote? yeah that's what I thought. Having some regrets?
10/25/2001 USA Patriot Act of 2001
HR 3162 Y Bill Passed - Senate
09/14/2001 Military Force Authorization
S J Res 23 Y Joint Resolution Passed - Senate
Wyden, you forgot to mention the PATRIOT act violates the 4th ammendment of the Constitution -- but I guess you guys in the Senate/House don't care for the Cons--ti--tu--what??
"I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence -- classified or otherwise -- that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security". That's my gut conviction, too.
Thank you, Senator Wyden, for looking out for us, true patriots
Thank you Senator for this article and for your perserverance on health care reform. I'm so happy that you are in the Senate during these troubled times.
The Patriot Act was a favorite symbol of Republican evil for years, but now Democrats are content to make minor tweaks to it and keep it as the law of the land. If Dems have any integrity they'll let the whole Patriot Act die. If they don't, they're just a bunch of hypocrites who cynically used the issue as a tool for political gain.
jqcitizen is right
"Put the 'Patriot Act' in the scrap bin where it should be. Start over and do it right this time.
and SIGN the PETITION calling for Prosecution of the Bush Torture Conspiracy at http://ANGRYVOTERS.org
"Instead of working with Congress to update the law, these officials decided to work outside the law and create a warrantless wiretapping program that they hid from Congress and the public."
Repeal the Patriot Act for passing under fraudulent pretenses. Rewrite it (if it even needs to be rewritten) so that it is actually constitutional with justice and transparency in mind.
It's spelled 'judgment'
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