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Zero Hour, Minus One

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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July 22, 2005

This morning, the news is all about last night’s House vote on Patriot Act reauthorization. Lawmakers voted 257-171 to make permanent 14 of the expiring provisions, and to extend two others for an additional decade…which is a very long time.

The news, unfortunately, is not about the Senate Judiciary Committee’s legislation, which passed unanimously in committee yesterday and is a sight better than what the House came up with (more on that later).

Unfortunately, the media environment could not be worse for the House to be considering legislation with such potentially dire consequences.

Airwave oxygen is being sucked away by not one, not two, but three major news stories: the Roberts nomination, the attacks in London and the continuing flap over the Roveian Slip at the White House. And it doesn’t look like the last one is going to Plame out any time soon (okay, sorry, I couldn’t resist).

Still, on Wednesday, USA Today ran a great editorial (alongside a pro-Patriot Act piece): “Congress has the antidote to prevent such abuse. It can fix the law’s problems and ensure its most controversial provisions will have to be reviewed again soon.”

The San Francisco Chronicle notes Orange County Republican Rep. Dana Rohrabacher’s impassioned speech in favor of including new four year sunsets on all of the expiring provisions. “These powers were not to be permanent,” he said. “They were to help us win the war, not become permanent.” The Boston Globe notes the political dynamic: ”There’s plenty of room to make agreements,” says Rep. Michael Capuano, D-Mass. “But they don’t want people like me to vote for it. The whole approach is totally political.”

In the NY Times, Republican Rep. “Butch” Otter from Idaho actually said: “I’m embarrassed to be on this side of the aisle.” Ouch. That story also quotes Senior Legislative Counsel (and an intimidatingly good blogger) Lisa Graves. And here, from the Washington Post, quoting Lisa. CNN quotes Lisa again. The LA Times, doing what? Quoting Lisa.

Despite the dismal legislation in our lower chamber, the Senate Judiciary Committee also approved legislation today, which is a significant improvement.

Among other things, it would require the F.B.I. to have an factual basis before seeking a Section 215 court order for the production of personal records, and further requires some connection with a suspected terrorist or spy or an innocent person in contact with such a suspect (as opposed to the current standard, which only requires a certification that the records themselves are relevant to a terrorism or foreign intelligence investigation).

However, on Section 505, which allows the federal government to demand banking, Internet, telephony and other types of records without going through a judge, it halves the baby. The bill would give the recipient of one of these “national security letters” the right to consult with an attorney and to challenge the letter, but it does not contain a standard requiring a statement of facts showing relevance or any connection with a suspected terrorist, spy or person in contact with a suspect.

What next? The action now moves to the Senate. And, to be quite clear, the Senate Judiciary Committee’s bill is a significant improvement over the House legislation. As our Policy Counsel for National Security Tim Edgar wrote in his letter to the Hill on the bill:

We genuinely appreciate the efforts Senators have made to include significant improvements in the Senate Judiciary Committee bill. We are especially appreciative of the efforts of the Chairman, Ranking Member Leahy, Senator Durbin, and Senator Feingold to craft a bill that won the unanimous support of the Judiciary Committee in the mark-up today. We commend the hard work of those who have toiled to produce a bipartisan bill that takes a significant step forward in improving some of the most intrusive provisions of the Patriot Act.

Expect to see action on the Senate legislation come to the floor before the Hill breaks for its August “in-district work period.” This is not a bad thing, so long as the strides made in the Senate bill can be preserved when the two chambers meet to hammer out their differences in conference. As for the ACLU, that means it’s time to redouble our efforts (not to quote the first scene from Return of the Jedi) to make that happen.