A Patriot Act History Lesson: How Warnings Were Mocked in the Senate

In 2006, Russ Feingold anticipated exactly how the government would stretch, exploit, and abuse vague language -- and was derided for it.
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During the winter of 2006, the U.S. Senate was debating the re-authorization of the Patriot Act. The legislation would ultimately pass by a wide margin, and George W. Bush signed it into law. But before that could happen, civil libertarians, led by then-Senator Russ Feingold, tried to amend the 2001 law. They warned that its overly broad language would permit government to pry into the privacy of innocent Americans and warned about the likelihood of executive branch "fishing expeditions."

Dismissive Senate colleagues scoffed at their concerns.

An exchange between Feingold and then-Senator Jon Kyl is illustrative of the way civil libertarians warned of coming abuses, only to be dismissed as hysterics needlessly wasting Senate time.

The scene takes place on the Senate floor on February 16, 2006. Feingold was trying to amend the Patriot Act, arguing that Section 215, a part of the law core to the NSA controversy, gives the government "extremely broad powers to secretly obtain people's business records." Said Feingold (emphases mine throughout):

The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges.  It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records. 

But the core issue with Section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report -- "relevance" -- will still allow government fishing expeditions. That is unacceptable.

He went on:

Next, let me turn to judicial review of these Section 215 orders. After all, if we're going to give the government such intrusive powers, we should at least people go to a judge to challenge the order.  The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process.

Today we know that the government has invoked Section 215 to obtain call data on all Verizon customers, and has very likely been used to collect data on tens or hundreds of millions of Americans who are customers of all the major telecom carriers. Feingold was exactly correct: The sensitive business records of innocent, law-abiding Americans were seized because the minimization standard, "relevance," turns out not to minimize affected Americans at all. Additionally, it has so far proved not just very difficult but impossible to get meaningful judicial review.

But back in 2006, when Feingold remained a lonely voice in opposition to Patriot Act re-authorization, look at how Kyl, speaking on the same day, derisively dismissed his concerns.

Said Kyl, opposing Feingold's suggested amendments:

  • "There is no basis for delaying the Patriot Act."
  • "What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year."
  • "I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously."

  • "I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on... I thought I would take two of the amendments -- we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the Patriot Act -- the kind of amendments that would be offered. It shows how unnecessary this approach is."
  • "This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations .... The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror ... this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order .... It serves no substantial interest but, as I said, can be very damaging to our national security."

So thus far, Kyl had literally asserted not just that Feingold's amendments were, on balance, wrongheaded, but that they served no purpose or interest at all -- and had suggested that the very effort to amend the Patriot Act isn't just purposeless but also a sign that Feingold didn't take Bin Laden seriously -- which is to say, the cheapest rhetorical trick in the Senate playbook.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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