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House Looks Like They’ll Pass Patriot Act Extension Today

If you blink today, you may miss the House of Representatives passing an extension until the end of the year of several provisions of the Patriot Act that expire in Feburary. They will try to pass it under the suspension of the rules, meaning that they will need a 2/3 vote, but also that nobody can offer amendments. And they will spend a whopping 40 minutes of debate on the topic.

40 minutes is all the House will get to discuss whether the FBI should be able to use roving wiretaps; 40 minutes for the “lone wolf” provision that allows surveillance on individuals not connected to terrorist organizations; 40 minutes to decide whether to continue to allow the authorities to use national security letters to demand access to library records or other documents without a warrant from a judge, if they claim it relates to ongoing terrorism investigations. This year, unlike previous years, there has been no discussion at the committee level on any of these measures before moving to 40 minutes of debate and the vote.

They probably don’t need much more than 40 minutes, since the outcome is preordained. Though Patrick Leahy offered a bill with some minor reforms, including elements that the Justice Department promised to implement voluntarily (I’ll put what DoJ has determined they’ll do on the back end), the White House has put its weight behind the blanket extension that will come up in the House today. And Dianne Feinstein has engineered her own version, which will be able to bypass the Senate Judiciary Committee, chaired by Leahy, and move right to the floor.

Feinstein, interestingly, purported to be theoretically supportive of Leahy’s reformist impulses, but argued that the “time crunch” created by the end-of-February sunset deadline makes this the wrong time to consider reforms. (In order to hurry things up, a Hill contact tells me, Feinstein’s bill will be fast-tracked to the floor under Senate Rule 14, circumventing the committee process.) This really makes very little sense. Leahy’s bill is essentially the same proposal reported out favorably by a bipartisan Judiciary Committee majority; the point of doing a one-year reauthorization in 2010 was supposedly to allow Congress to consider reform alternatives in the interim. Moreover, the Justice Department has already effectively agreed to accept the reforms that bill contains. If there’s nevertheless a need for further deliberation, Congress can do exactly what it did last time around and extend the sunset by a few weeks or months to allow for additional debate.

The time constraints here are wholly of Congress’ own making. And while the Leahy bill doesn’t go far enough by any means, there is just no good excuse to delay at least the beginning of needed reforms any further.

Doesn’t matter, the clock’s running out, we cannot debate the civil liberties of the American people for more than 40 minutes.

Dennis Kucinich (D-OH), in a speech on the floor this morning, cited the report that the FBI admitted to the President’s Intelligence Oversight Board to violating the law at least 800 times on national security letters, going well beyond even the loose safeguards in the original provision. According to the report the FBI “may have violated the law or government policy as many as 3,000 times” between 2003 and 2007, according to the Justice Department Inspector General, while collecting bank, phone and credit card records using NSLs. Therefore, the House will spend 0.8 seconds per violation debating whether to extend the exact same authority to the FBI for another year.

Kucinich called this a “destructive undermining of the Constitution… Don’t tread on me means you protect your liberty, you stand for freedom… How about today we take a stand for the Constitution?” But while an LA Times report today suggests that some tea party members want to sunset some provisions, I doubt the House would put the bill up for a vote if they didn’t feel confident for passage (or at least confident that they could blame Democrats for putting national security at risk). In the end, with Administration support, I assume that the provisions will get extended.

I’ll be watching the vote today.

…Here’s what the Justice Department agreed to as safeguards:

In its response to Leahy’s letter, the Justice Department indicated that it has:

Implemented a requirement that, when library or bookseller records are sought via a Section 215 order for business records, a statement of specific and articulable facts showing relevance to an authorized investigation must be produced;
Adopted a policy requiring the FBI to retain a statement of facts showing that the information sought through a National Security Letter (NSL) is relevant to an authorized investigation, to facilitate better auditing and accountability;
Adopted procedures to provide notification to recipients of NSLs of their opportunity to contest any nondisclosure requirement attached to the NSL;
Agreed to ensure that NSL recipients who challenge nondisclosure orders are notified by the FBI when compliance with such nondisclosure orders are no longer required;
Adopted Procedures for the Collection, Use and Storage of Information Derived from National Security Letters, which were approved by Attorney General Holder on October 1, 2010;
Agreed to work with Congress to determine ways to make additional information publicly available regarding the use of FISA authorities.

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David Dayen

David Dayen