The Senate and House have sent President Barack Obama a bill that would extend three expiring Patriot Act provisions for 90 days, leavening a final decision on the controversial measures for later.
The Obama administration already has voiced strong support for renewing the provisions, which had been set to expire Feb. 28, claiming that intelligence and law enforcement agencies need the powers to protect the country.
“Two years into the Obama administrations we’re already beyond all of the controversial debates on whether the Patriot Act is OK or not,” said Michael O’Hanlon, senior fellow at the Brookings Institution. But there is still the potential for a political debate on the three provisions, if not the law in its entirety.
The House had approved an extension on the provisions until December, but the Senate amended the bill, shortening the original 10-month extension to three months, which the House accepted so that a bill would get to Obama before the expiration date.
The first provision permits the government to use roving wiretaps in terrorism cases. The taps can jump from one electronic device to another, for example a cell phone or computer. The second provision allows the government to access business records, such as library or bookstore records, of suspected terrorists. The third authorizes surveillance of “lone wolf” suspects who act alone and might not be tied to or involved with any specific organization.
The most controversial provision is government access to business records, which involves use of National Security Letters, according to Ken Gude, managing director for national security at the Center for American Progress.
Gude noted that courts have no oversight of the letters.
The Department of Justice’s Office of Inpector General has issued reports and recommendations on the use of NSLs and Attorney General Eric Holder has followed the recommendations voluntarily. Recommendations include: The FBI should improve its database to ensure that it captures timely, complete and accurate data on NSLs; FBI should take steps to ensure that it follows all the requirements of the NSL authorities; and the FBI should issue additional guidance to field offices to assist in identifying possible violations arising from use of NSLs. All of the recommendations can be found in the Inspector General’s 2007 report.
Yet, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, wants the recommendations codified.
He introduced legislation to extend the provisions until 2013 but with expanded oversight of U.S. intelligence-gathering tools. Leahy, among others, has been highly critical of the way the Department of Justice has used NSLs without proper oversight and he would like to use this round of Patriot Act extensions to change that. This will be the focus of Judiciary Committee hearings, according to Gude.
The use of NSLs will prove to be the biggest issue, according to Gude, because they have no oversight and are not reviewed in advance by courts.
The roving wiretaps provision allows intelligence agencies to keep up-to-date with the latest technology, Gude said. But O’Hanlon has another view: “Any kinds of provisions involving Internet user wiretapping are going to be heavily scrutinized.”
The “lone wolf” provision has never been used, according to government officials, so critics have suggested eliminating it.
In addition to the substance of the provisions, their duration also will be up for debate in coming months. House Republicans, in particular, would like a short extension, which they think is a political winner for them if it becomes a debate in the upcoming 2012 elections.
On the other hand, Obama and the Democrats would like a longer extension that would move the next vote to 2013, after the elections.
Making the provisions permanent “certainly is an option,” according to Gude, and doing so would not cause much stir “because even if the law is made permanent, you can always change the law.” He believes that the provisions will either always be extended when they come up for renewal or just made permanent.
