Democrats Failing to End Bush-Era Abuses of Power

Posted October 21, 2009 at 4:26pm

Earlier this month, the Washington Post touted the Obama administration’s “increasing confiden[ce] that it has struck a balance between protecting civil liberties, honoring international law and safeguarding the country.— The USA PATRIOT Act reauthorization bill approved by the Senate Judiciary Committee last week provides ample evidence that the civil liberties side of the scale is getting short shrift.

It is troubling enough that the bill fails to add meaningful safeguards to a set of powers granted — often over strenuous Democratic opposition — during the Bush administration. These powers enable the government to obtain vast amounts of private information about Americans who have no ties to terrorism or espionage whatsoever.

But even more disheartening is last week’s revelation that the Obama administration, while publicly claiming to be open to increased civil liberties protections in the bill, had been lobbying Congress in secret to remove them. Some of these proposed (and now rejected) protections were identical to measures supported by then-Sen. Barack Obama (D-Ill.) in 2005.

As if Obama’s stealthy about-face didn’t provide enough cause for concern, Senate Democrats proved all too eager to follow his lead, jettisoning without a second thought their erstwhile objections to these overbroad authorities. Just three years ago, committee members unanimously endorsed a provision to help prevent abuses of National Security Letters — a tool that enables the FBI to collect private records about Americans without a warrant. The very same provision was able to garner only four votes this year.

Few observers had anticipated this result. To the contrary, many had hoped that the need to consider reauthorizing three expiring provisions of the PATRIOT Act would lead to a thorough public debate over the full range of existing surveillance powers. In the years since 9/11, these powers have been adopted or modified piecemeal, usually hurriedly, often in response to a crisis and frequently in secret. Congress could have taken this opportunity to consider the big picture, to map out a responsible, comprehensive policy that comports with our shared interests in liberty and national security.

But even when it became clear that Congress had no appetite for such broad reform, there was still every reason to believe that the Democrats who control Congress would at least reform the expiring provisions, as well as provisions that had been prone to abuse (like National Security Letters) or held unconstitutional by the courts (like gag orders placed on libraries, telephone companies or other businesses required to turn over customer records).

At first, things seemed to be headed in that direction. Senate Judiciary Chairman Patrick Leahy (D-Vt.) drafted a bill that included some protections to ensure that intelligence-gathering is limited to targets who have some connection to terrorism or espionage. For example, the bill would have allowed the government to obtain private records about Americans only if there was some tie between those records and a suspected terrorist or spy, someone known to a suspected terrorist or spy, or the activities of a suspected terrorist or spy.

On the day of the committee markup, though, that bill was abandoned in favor of a markedly weaker alternative, the result of a compromise between Leahy and moderate Democrats. The compromise bill was then further stripped of meaningful reform measures by a package of amendments, suggested in secret session by the Obama administration, offered by Republicans and overwhelmingly supported by the committee’s Democrats. The valiant efforts of civil liberties champions Sens. Russ Feingold (D-Wis.) and Dick Durbin (D-Ill.), as well as newly minted Democratic Sen. Arlen Specter (Pa.), were not enough to repair the damage done by these compromises.

The resulting bill, as voted out of committee, leaves almost entirely intact the overbroad authorities in the original statute. The few improvements it does contain are minor compared to those that were stripped. Additional audit and reporting requirements for warrantless searches and National Security Letters, for example, are laudable transparency measures that might exert some deterrent effect on overuse or abuse of existing powers. But they do not alleviate the need to place additional substantive safeguards on those existing powers, safeguards this bill does not provide.

When the Bush administration said “trust us— with broad powers to detain and interrogate terrorist suspects or to conduct surveillance outside the Congressionally enacted framework, we learned — over the course of several years and at great expense — the importance of saying “no.— Just as the terrorist threat has survived the change in American presidential administrations, so has the threat posed by overbroad executive authorities.

Time and again, Democrats in the House and the Senate, including Barack Obama, have lamented the fact that, in the wake of 9/11, Congress granted the president too much power, too many potent tools — unchecked by sufficient constraints — to conduct electronic surveillance, to engage in physical searches and to access sensitive information such as library records.

Where was that well-founded concern last week? It seems to have exited Washington, D.C., along with the Bush administration.

We can only hope that when the House takes up these issues it follows the lead of House Judiciary Chairman John Conyers (D-Mich.) and his co-sponsors, Reps. Jerrold Nadler (D-N.Y.) and Bobby Scott (D-Va.), who Tuesday introduced two bills that exhibit the solicitous approach to privacy and civil liberties that the Senate bill so completely rejected.

Emily Berman is an attorney with the Liberty and National Security Project at the Brennan Center for Justice at New York University School of Law.