Article created by The Century Foundation.
Last week’s House-Senate impasse over renewal of the Patriot Act was only temporary, but it gives the nation a chance to step back and assess the measures Congress is poised to enact. If not fixed, they will bring the long Patriot Act controversy to an unexpected conclusion. Across the board, the complex provisions of the original act worked to block independent appraisal of government surveillance methods. The bill about to emerge from Congress moves even further in that dangerous direction.
The civil liberties concerns have been debated endlessly. The Patriot Act permits secret “sneak and peek” searches with long delayed notice to the homeowner, even in investigations unrelated to terrorism. In foreign intelligence matters, secret searches are allowed with no subsequent notice at all, and electronic surveillance gets greatly reduced judicial oversight. The FBI can issue “national security letters” to obtain financial records with no judicial oversight whatsoever.
Perhaps most controversially, under section 215 of the Patriot Act, FBI agents can obtain records of any and all sorts, whether from libraries, hospitals, bookstores, or even political and religious organizations, merely by certifying that they consider the records relevant. In effect, agents need only self-certify that they are acting in good faith. And a person required to produce records under section 215 or a national security letter is subject to an automatic gag order that prohibits her from ever disclosing the government’s demand.
Despite grass-roots opposition to these powers, Congress is crafting a “compromise” that will make them even stronger. The draft legislation makes explicit that a person subject to a gag order can consult a lawyer, but it then provides that if she decides to challenge the order in court, the judge must accept as conclusive the government’s claimed need for it. Violation of the gag order will now become a criminal offense.
The Washington Post recently revealed that FBI use of National Security Letters has skyrocketed to 30,000 per year, from only 300 per year before 2001. The story named several individuals who had received these demands and described their predicaments. That article may be the last of its kind. Under the new legislation, people who “leak” information like this will face prosecution, and if the reporter tries to withhold their names, he could be held in contempt until he identifies them. For the first time in our history, the obligation to shield government actions from the press will be imposed not only on public officials who pledge to protect classified information but on all of us.
Conventional wisdom has it that terrorism requires a “new balance” between privacy and security. Many parts of the Patriot Act make sense in those terms. But secret searches and document demands don’t simply fine-tune that balance. They threaten freedom of the press, religious liberty and political dissent, freedoms indispensible to democracy. Laws that intrude in these areas must be narrow and temporary. They must rest on national security imperatives, not far-fetched, speculative concerns. Secret search and document powers cannot meet that test.
The Patriot Act’s most striking and least necessary sacrifice, however, is not civil liberties. It is accountability. Throughout the Act, congressional and judicial checks were systematically weakened. On the pretext of eliminating red tape and keeping terrorists in the dark, the Administration has reflexively opposed nearly all efforts to strengthen oversight of surveillance, whether before the fact or afterwards.
There is no “balance” between accountability and security. One is necessary for the other. Yet the Administration rejects the modest proposal that when there are no exigent circumstances, the FBI should certify that it has an objective basis for demanding sensitive First Amendment information like bookstore records and religious membership lists, The Administration opposes the thoroughly innocuous suggestion that, six months or a year after the fact, it should disclose not only the aggregate total of foreign intelligence orders but some minimally informative specifics, such as the frequency of surveillance of U.S. citizens or the number of document demands addressed to libraries, churches and mosques.
The Administration accepted a 9/11 Commission recommendation to create a Civil Liberties Oversight Board but then pulled most of its teeth. Provisions to guarantee the Board’s independence were central to the bill that passed the Senate but were stripped away in the House. In its final form, the Board has no full-time members, no subpoena power, no guarantee of minority party (read Democratic) membership, and its members have no fixed terms but serve only at the President’s pleasure. This is “oversight” in name only.
Accountability is not just a bulwark against abuse of individuals. It is essential to preserve public trust in law enforcement and to insure that limited resources remain focused on real problems. Thirty years ago, when the Senate’s Church Committee uncovered decades of FBI misconduct and mismanagement, we thought we had learned that lesson. If Congress is willing to couple strong investigative powers with effective oversight, our government can protect us without putting the foundations of a free society at risk. But if Congress continues on the path of unquestioning deference to the Commander-in-Chief, America cannot be safe, no matter how much of our liberty we surrender.
