February 18, 2006

After putting up a fight on the Patriot Act in December, the Senate has rolled over under White House pressure, and is now saying “No Mas.”

Only three Senators objected to proceeding with a vote on this badly flawed bill, which is sailing toward full passage, and then on to Bush’s desk for his signature.

The three courageous Senators were Russ Feingold of Wisconsin, Robert Byrd of West Virginia, and Jim Jeffords of Vermont.

Feingold was the most outspoken.

“What we are witnessing is quite simply a capitulation to the intransigent and misleading rhetoric of a White House that sees any effort to protect civil liberties as a sign of weakness,” Feingold said on the Senate floor February 15.

“Protecting American values is not weakness, Mr. President.

“Standing on principle is not weakness.

“And committing to fighting terrorism aggressively without compromising the rights and freedoms this country was founded upon—that’s not weakness either.”

The Senate made only “a few insignificant, face-saving changes” on the bill it held up in December, Feingold noted.

For instance, on the question of obtaining library records or bookstore records, the new bill appears—but only appears—to let libraries off the hook, but then it snags them again. It says that libraries, when functioning in their traditional roles, are not subject to Section 215 orders. But it adds that libraries that provide “electronic communication services”—e-mail and perhaps simply Internet access—are subject. “So, it is very unclear whether this section as now written provides any real protection to libraries,” the American Library Association states.

Also, the Senate did not change the standard for investigating someone under Section 215 of the Patriot Act. That standard is still the ridiculously low one of “relevance” to a terrorist investigation, though the Senate fought hard last year to raise that standard so that the person being investigated has some demonstrable connection to a terrorist.

The revised bill does reduce the lifetime gag order on businesses under Section 215 to one year. But this, too, is much less than meets the eye.

To keep the gag on, all the government has to do is certify to a FISA judge that there is reason to believe that lifting the gag “may endanger the national security of the U.S., interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”

Once again, this is an improvement that is meaningless once you see the fine print.

Nor does the revised bill limit the reach of so-called National Security Letters, which are essentially subpoenas the FBI issues all by itself. The potential for abuse of this instrument is vast. And, like Section 215 orders, there is a gag on recipients of National Security Letters. This gag can be removed only if the recipient can demonstrate that the government acted in bad faith. “This is a standard of review that is virtually impossible to meet,” as Senator Feingold noted.

On the question of “sneak and peek”—the ability of law enforcement to go into your home when you’re not there and ransack your belongings and place a recording device on your computer and then leave without telling you about it for some undefined “reasonable period of time”—the new agreement is hardly an improvement.

The only change is that they now have to tell you within 30 days, though the government can get an unlimited number of 90-day extensions on that notification.

Negotiators did make a good change in the Patriot Act by allowing recipients of 215 orders or National Security Letters to consult with an attorney without notifying the FBI about who that attorney is.

But the new bill is even worse than the current Patriot Act in that it criminalizes “disruptive or potentially dangerous conduct” at Secret Service events, even when the President, Vice President, or other protectees are not in attendance. So, for instance, during the first few days of a national convention, if you’re holding a peace sign and being “disruptive,” you could be arrested and face a year in prison.

As the ACLU notes, even the so-called improvements that were announced in the recent deal “do not cure the most fundamental flaws in the Patriot Act.”

Once again, Senator Feingold is putting up a brave and almost solitary fight to protect our civil liberties.

He may lose again. We may lose again. But there is valor in the fight.