Richard Moore Investigative Reporter 12/18/2009
With key sections of the U.S. Patriot Act set to expire Dec. 31, the Obama administration - essentially tiptoeing through the corridors of Congress and using the raucous health care debate as cover - has quietly maneuvered for renewal of the controversial provisions, which he opposed as a senator.
Perhaps the most contentious measure is the business records provision, also known as the library provision, which allows the government to seek a court order forcing private entities such as banks, hospitals, and libraries to hand over "any tangible thing" - from library circulation records to medical records - officials think is relevant in a terrorist investigation.
This week, with time running out and no time to debate the bill on its merits, Democratic supporters of reauthorization in the Senate tried but fail to win House support to embed the provisions in a separate $626 billion Pentagon funding bill. The House has passed a bill with stronger civil liberties protections, but that version is not expected to survive.
Congress will now likely approve temporary extensions and deal with reauthorization early next year, giving opponents renewed hope they can still defeat or modify aspects of the national security language.
In early October, the Senate Judiciary Committee voted 11-8 to send the measure to the Senate floor. The provisions would allow the government to continue to use roving wiretaps to monitor suspects, to obtain business records of national security targets, and to track and surveil so-called 'lone wolves' whose connection to a foreign government or terrorist group has not been established.
The legislation, co-sponsored by judiciary committee chairman Patrick Leahy (D-Vt.) and Sen. Dianne Feinstein (D-Calif.), would tweak the ability of the FBI to gain certain personal records of citizens, requiring the agency to show "specific facts" that requested records pertain to a terrorism investigation.
Core language remains
Still, the most controversial aspects remain intact. Earlier this year, Sen. Russ Feingold (D-Wisconsin) had worked to place language in the bill strengthening civil liberties protections, but in the judiciary committee the Obama administration worked with Republicans to craft seven amendments, effectively watering down Feingold's work.
Feingold said the bill that emerged from the judiciary committee left him "scratching his head."
"The Patriot Act reauthorization bill passed by the Judiciary Committee falls far short of adequately protecting the rights of innocent Americans," Feingold said in a statement. "Among the most significant problems is the failure to include an improved standard for Section 215 orders (getting personal information through national security letter requests), even though a Republican controlled Judiciary Committee unanimously supported including the same standard in 2005."
Feingold said what was most upsetting to him was the willingness of too many members of the Democratic-controlled committee to defer to behind-the-scenes complaints from the FBI and the Justice Department.
"We should, of course, carefully consider their perspective, but it is our job to write the law and to exercise independent judgment," Feingold said. "After all, it is not the prosecutors' committee; it is the judiciary committee. And while I am left scratching my head trying to understand how a committee controlled by a wide Democratic margin could support the bill it approved, I will continue to work with my colleagues to try to make improvements to this bill."
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