However short the current reprieve from three expired and generally useless provisions in the Patriot Act turns out to be, this much seems certain: It’s going to take a solid Republican majority to toss out the most hysterical aspects of post-9/11 lawmaking.
This makes a certain amount of intuitive sense, even if it means it’s going to be a tough fight to give the current version of the surveillance state a final heave-ho. Only Richard Nixon, who made his bones as an Alger Hiss-baiting anti-communist, could go to Red China, and only the Democratic Party, which had long been home to segregationist politicians, could make the final push on civil rights legislation in the 1960s.
Although the Patriot Act was passed by overwhelmingly bipartisan votes when the Trade Center was still a steaming mass of wreckage in Lower Manhattan, the law is rightly understood as an essentially Republican piece of legislation that sailed through a majority Republican House and Senate and was signed by a Republican president.
As important, the Democrats put up effectively no fight against the Patriot Act, either out of fear of going against the zeitgeist in the weeks after the 9/11 attacks or sincere conviction that the Patriot Act was absolutely necessary. (That no one read the bill before it passed makes it difficult to draw any conclusions that speak well about members of either party.) A couple of years later, the Democrats pulled the same spineless trick with Iraq, where more Democrats supported the 2003 invasion than did the 1991 action put together by Bush I after Saddam Hussein invaded Kuwait.
As liberal national security state supporters such as Dianne Feinstein only too happily illustrate, whatever Democrats may believe about civil liberties doesn’t get in the way of voting for security over freedom whenever the opportunity presents itself. Barack Obama might have campaigned as a critic of the Patriot Act, but it was his CIA director, John Brennan, this past weekend who was pushing for reauthorization of bulk collection of telephone metadata, roving wiretaps, and the “lone wolf” provision, which allows law enforcement to track suspects unaffiliated with any known terrorist group or foreign power. Recently sworn-in Attorney General Loretta Lynch couldn’t even announce corruption charges against FIFA members without calling for re-upping on those Patriot Act provisions, too.
So it falls to Republicans to clean up the mess they did so much to create. To their credit, they are doing exactly that, even as they fight among themselves over the details. On the one hand, you’ve got wracked-with-guilt characters such as James Sensenbrenner, the Wisconsin representative who introduced the Patriot Act in 2001 and who’s been denouncing the way the government has implemented the legislation. In 2013, only after Edward Snowden’s revelations and a long history of protecting the Patriot Act from any sort of congressional criticism, Sensenbrenner finally flipped and wrote Attorney General Eric Holder that the National Security Agency’s request for Verizon records was “not consistent with the requirements of the Patriot Act.”
Sensenbrenner introduced the USA Freedom Act, which reforms parts of the Patriot Act, most obviously by changing how the feds can search for metadata. The bill sailed through the House, even as hard-core Republican firebrands such as Michigan’s Justin Amash voted against it, saying it still gives too much power to the surveillance state. In the Senate, Tea Party favorites Mike Lee and Ted Cruz led the charge in favor of the legislation. Majority Leader Mitch McConnell was pushing for a straight-up reauthorization of the Patriot Act, which went nowhere after Rand Paul—joined by Ron Wyden, the only Democrat who spoke during Paul’s epic 2013 filibuster against Brennan’s confirmation vote—ran out the clock on the Senate’s session last week.
On Sunday, Paul got his wish, which was to see the Patriot Act provisions governing bulk collections, roving wiretaps, and “lone wolves” expire even as he conceded that the USA Freedom Act “will ultimately pass” and thus restore versions of the same.
But the debate within the Republican Party is still important, even if most of the outcome is symbolic in the near term. Mass opposition to a clean reauthorization of the Patriot Act is a clear sign that we are coming out of the 9/11-induced fog that allowed for way too much trust being placed in the hands of the government.
We’ve watched officials in both the Bush and Obama administrations lie to the public about what was going on, and we’ve seen the FBI itself admit that Section 215 has proved incredibly useless in fighting terrorism and that the “lone wolf” provision has never been used.
The Patriot Act should never have passed in the first place, so it’s good to see the Republicans openly discussing how to whittle it down to something that might fit within defensible practice. As Ohio State’s John Mueller has written, laws and practices put into place during national security emergencies tend to last for decades, even when the threat has receded or been unmasked as mostly illusory. In 1972, Mueller and co-author Mark G. Stewart note, “the FBI opened 65,000 new files as part of its costly quest to ferret out Communists in the United States. The pursuit died out only when international Communism collapsed at the end of the Cold War.”
In this sense, then, the intra-Republican debate over the Patriot Act, including the reformist USA Freedom Act, shows we are moving into a new and, one hopes, more reality-based discussion of countering terrorist threats to America. The USA Freedom Act may well be similar to the legislation it will supplant, but at the very least it’s a step in the right direction. And compared to other examples of laws and practices that stick around long after the threat that birthed them no longer matters, we’re practically moving at warp speed.