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Secure or Free? Congress Argues about Reauthorizing the Patriot Act

Is it possible to be both secure and free?

This is not only a spiritual question, but also a practical one, as demonstrated by the United States Congress. Our representatives are grappling with how to secure U.S. freedoms while safeguarding the nation from a terrorist attack.

The Patriot Act - reauthorization fails

On December 16, 2005, the Senate failed to renew 16 expiring provisions of the Patriot Act. Senators refused 52-47 to use a procedural tactic that would have stopped the debate and forced an up-or-down, majority-rules vote, a procedure known as invoking cloture.

The Patriot Act Reauthorization Bill already passed through the House and Senate and went to a committee where members from both houses and both parties try to reconcile the differences between the two bills, called a conference committee.

The House voted 251-174 to accept the conference report, but many in the Senate are unhappy with changes made in the committee. Both "conservative" Republicans and "liberal" Democrats say that the latest version of the bill allows government to infringe on Americans’ civil liberties and that the Patriot Act should be extended for just three months so it can be discussed again next year.

Senate Majority Leader Bill Frist is still hopeful that the Senate will reauthorize the 16 expiring provisions before the end of 2005. He still needs to sway 7 Senators in order to get the required 60 votes to invoke cloture.

Senator Arlen Specter (R- Pennsylvania) explained that Senators are particularly open to the wishes of their constituents on this issue right now. To contact yours, click here.

What is the Patriot Act?

In the aftermath of September 11, Congress passed the USA Patriot Act with overwhelming support.

Many of our leaders say that better intelligence could have prevented the terrorist attacks. The Patriot Act is a response to that failed intelligence; it increases the government’s power to collect information that may (or may not) lead to the capture of terrorists.

New freedoms...for the FBI

The Patriot Act is made up of both temporary and permanent provisions that give the Justice Department and the FBI new freedoms. Some of the temporary provisions allow for the interception of email and phone calls, the seizure of voice mail, and/or physical or electronic surveillance of suspected terrorists.

Do you need privacy?

It goes without saying that an increase in surveillance equals a decrease in privacy. To what extent are you willing to give up your privacy for protection?

Is the Patriot Act working?

We do not know if this increased surveillance has resulted in increased protection. The Justice Department won’t tell the public (or even Congress) just how national intelligence has changed.

To protect National Security, the Justice Department feels that information about terrorism prevention must be kept classified.

Trading one freedom for another

In April 2003, Republican Senator Orrin Hatch proposed to make all Patriot Act provisions permanent, but members from his own party and from the Democratic Party are concerned about the broader implications of these provisions.

Since Congress has so little information about what the administration and the FBI are doing about terrorism, they are wary of extending the temporary provisions of the Patriot Act.

The puzzle of national security

After September 11, Congress decided to grant the administration these new powers, but under the condition that they be evaluated after a few years. Congress has the job of determining whether the temporary provisions, such as access to business records, should be extended or terminated. But how can they do that without more information on the effectiveness of these provisions?

To extend or not to extend, that is the question

President George Bush and Senate Majority Leader Bill Frist (R-Tennessee) feel that three months is too short an extension. Frist may consider a full year extension, but prefers to make permanent the Patriot Act or continue it for many years. Senator Frist and his colleague, Arlen Specter (R-Pennsylvania), also worry that the House will refuse a short extension.

If the House rejects an extension and the Senate declines the current conference report, the Patriot Act will expire on December 31, 2005. Most lawmakers feel that much of the act is valuable in preventing terrorism and do not wish to see it expire, but a bipartisan group believes that some of the provisions should be restricted further to ensure civil liberties.

Republicans questioning the Patriot Act are Jeff Sessions (Alabama), Lisa Murkowski (Alaska), Larry Craig (Idaho), Chuck Hagel (Nebraska) and John Sununu (New Hampshire). But only Murkowski, Craig, Hagel, and Sununu voted against cloture with all but two Democrats, Ben Nelson of Nebraska and Tim Johnson of South Dakota.

Frist strategically voted against cloture at the last minute so he could make a motion to reconsider the conference report later.

Provisions in question

Wiretaps

Although the conference report somewhat restricts the FBI’s power to plant roving wiretaps, the bipartisan group would like further limitations. This is in the forefront of the debate particularly with the disclosure that President Bush had secretly authorized monitoring individuals’ communications without the required issuing of a warrant by a judge - and that the New York Times which had the information withheld it from the American public for a year.

President Bush responded to the article unapologetically, saying the surveillance he authorized was crucial to national security.

Current law allows FBI investigators to plant wiretaps in any telephone a suspect may use if a court finds that suspect capable of thwarting traditional wiretaps.

The conference report would require investigators to notify the court and give good reason for tapping each new phone. The notice must also enumerate the total electronic surveillance of the suspect.

This provision would sunset on December 31, 2009.

Business records

Current law lets the courts permit investigators to obtain business records in international terrorism and intelligence investigations. These records include books, documents, and items. The attorney general must report to Congress twice a year on these court orders.

According to Congressional Quarterly, the conference report would require applications to the court to include a "statement of facts" showing "reasonable grounds to believe" that the business records are relevant and important to a terrorism investigation. Further, the suspect would be allowed to get a lawyer and seek judicial review. Requests for library, medical, educational, and tax return records must be approved by the FBI director, deputy director, or executive assistant director as well.

In addition, the Department of Justice inspector would have to audit and report to Congress the FBI’s use of this provision.

Those opposed to the conference report feel that it has few safeguards to protect civil liberties. They say that better legislation, which protects Americans’ freedoms and safety, can be created in time.

What do you think?

Can Americans be secure and free, or is there a tradeoff between the two? Do you believe that the Patriot Act compromises our freedom? Would failing to renew the act threaten our security?

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Update Posted on: 12/19/2005