Just before midnight last Thursday, a White House autopen signed legislation extending controversial provisions of the PATRIOT Act that were scheduled to expire the next day. President Obama authorized the use of a machine to produce a facsimile of his signature because he was traveling in Europe. But it was oddly appropriate, given the facsimile of congressional debate that preceded the bill's passage.
The extension was rushed through Congress based on a false sense of urgency, much like the original PATRIOT Act, which legislators did not even have time to read. Back then, 45 days after 9/11, the urgency was based on a fear of follow-up attacks. Last week the urgency supposedly was due to the long-anticipated expiration of three provisions: Section 215, which authorizes the government to demand "any tangible thing" it deems relevant to a terrorism investigation; Section 206, which lets the government obtain secret warrants for "roving wiretaps" without naming its target or specifying his location; and Section 6001 of the Intelligence Reform and Terrorism Prevention Act, which allows secretly authorized domestic surveillance of "lone wolf" terrorism suspects who are not connected to a foreign organization or government.
While members of Congress have had plenty of time to read the PATRIOT Act since 2001, many of them, perhaps most, still did not know what they were approving. Ron Wyden and Mark Udall, Democrats who serve on the Senate Intelligence Committee, repeatedly warned that the government conducts surveillance based on a "secret interpretation" of the PATRIOT Act, apparently involving Section 215, that cannot be discussed because it is classified.
Yet congressional leaders insisted the expiring powers—including the "lone wolf" provision, which has never been used—were absolutely essential to national security. Letting them lapse, even for a single day, claimed Senate Majority Leader Harry Reid (D-Nev.), would invite "dire consequences for our national security…giving terrorists the opportunity to plot attacks against our country undetected."
Never mind that Congress could have temporarily extended these provisions to provide more time for debate and consideration of amendments. The point of the wait-and-hurry-up strategy used by the PATRIOT Act's supporters is to assume away the very issue to be debated: whether the benefits of the privacy-invading powers granted by the law are worth the damage they do to civil liberties.
The law's supporters pay lip service to such concerns, professing admiration for PATRIOT Act critics such as Sen. Rand Paul (R-Ky.). Expressing regret that the Senate did not have time for the "full and complete debate on the PATRIOT Act" he had promised, Reid called Paul "a very pleasant man with strong feelings," saying, "I have only the highest regard for him."
But when Paul's refusal to join the artificial panic delayed the vote Reid wanted, the majority leader quickly changed his tune. Thanks to Paul's "political grandstanding," Reid warned, the government might lose "some of the most critical tools it needs to counter terrorists." Referring to Paul's proposed amendment restricting the use of Section 215 to obtain firearm records, Reid averred that "he is fighting for an amendment to protect the right of terrorists…to cover up their gun purchases."
As Paul noted in response, this charge was much like saying that someone who thinks police should obtain a warrant before searching the home of a murder suspect must be in favor of murder. Paul forcefully rejected the bipartisan post-9/11 consensus that "we wouldn't be able to capture these terrorists if we didn't give up some of our liberties."
Among other things, Paul questions the "suspicious activity reports" that financial institutions must file for cash transfers of more than $5,000, a requirement that was expanded by the PATRIOT Act. Noting that supporters of this mandate, which generates 1 million or so reports a year, say "the courts have decided our bank records aren't private," Paul responded: "The hell they aren't. They should be private." If this is "political grandstanding," we need more of it.
Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.
© Copyright 2011 by Creators Syndicate Inc.