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Posted 1:00 AM Eastern

by NWV Staff Writer
December 20, 2005

WASHINGTON, DC. -- Thanks to a small group of lawmakers who broke party ranks, the Senate on Friday rejected calls by the White House and Republican leadership to pass the conference report for H.R. 3199, that would reauthorize 16 provisions of the USA Patriot Act. The vote was 53-47 to continue debate. If not approved, the sections will expire on Dec. 31.

Critics maintain these sections infringe severely on Americans� rights and want more time to discuss and make much-needed changes to the 2001 anti-terrorism law (and its 2003 expansion), changes that would restore at least some constitutional safeguards and balance to a law that gives government powers that Congress, they say, should never have given in the first place.

�Everyone in America and around the world shares a desire to address the threat of global terrorism and to give law enforcement appropriate powers to pursue those terrorists,� said Sen. John Sununu, R-N.H., during last week�s ongoing debate. �But we want to make sure in doing so we pass legislation that is in keeping with the principles on which our country was founded � principles of individual liberty and freedom.�

As he did on several occasions, Sununu quoted Benjamin Franklin�s famous maxim: �Those who would give up a little liberty for temporary security deserve neither liberty nor security.�

The conference report was approved 251-174 by the House on Wednesday and was expected to clear the Senate by the weekend, despite growing opposition in the upper chamber.

But Sens. Russ Feingold, D-Wis., and Larry Craig, R-Idaho, made good on a threat to launch a bipartisan filibuster to prevent passage, and the bill�s Senate supporters � who were mostly Republicans -- failed to muster the 60 votes needed to close debate and bring the bill to a final vote.

Besides Craig and Sununu, Republicans voting to block the bill were Sens. Chuck Hagel of Nebraska and Lisa Murkowski of Alaska. Democrats Ben Nelson of Nebraska and Tim Johnson of South Dakota joined Republicans in support of the measure. Sen. Chris Dodd, D-Conn., was absent due to illness.

Majority Leader Bill Frist of Tennessee voted first to end debate, but changed his vote from yes (stop debate) to no, �a parliamentary move to allow him to seek a new vote later,� according to the Washington Post. GOP sources predicted Frist would reintroduce the measure Saturday or Monday.

Frist also refused a request by Leahy and Sununu to allow consideration of S. 2082, a recently drafted bipartisan bill, with almost 40 cosponsors, that would extend the Patriot Act deadline to March 31, claiming that both the House and the president oppose short-term extensions.

The Senate�s refusal to approve the conference report is seen as a major blow to the administration and its allies in Congress and may signal a spirit of dissent within the Republican Party. President Bush, Attorney General Alberto Gonzales and the Republican leadership of both houses had actively pressured lawmakers to bring the matter quickly to a vote -- warning that not allowing law enforcement access to an assortment of �appropriate tools� (such as clandestine searches of a person�s home and phone activity) puts the safety of the country in jeopardy of terrorist attack.

Friday's vote drew a stinging rebuke from the president, who assailed his critics at a press conference Monday.

"Congress has a responsibility to give our law enforcement and intelligence officials the tools they need to protect the American people," Bush said. �The senators ... must stop their delaying tactics and the Senate must vote to reauthorise the Patriot Act. In the war on terror we cannot afford to be without this law for a single moment."

Terrorizing the Constitution

But many dispute the president, including conservative columnist Rev. Chuck Baldwin.

�Under the rubric of �fighting terrorism,� President Bush and his fellow Republicans are actually terrorizing the U.S. Constitution!� writes Baldwin in �Instead of making America more secure, the Patriot Act puts America at greater risk of being terrorized -- by our own government.�

And former New Jersey judge Andrew Napolitano, a senior judicial analyst with Fox News and author of Constitutional Chaos: What Happens When the Government Breaks Its Own Laws, blasted the conference report in a recent column as �an unforgivable assault on basic American values and core constitutional liberties.�

�Unless amended in response to the courageous efforts of a few dozen senators from both parties, the new Patriot Act will continue to give federal agents the power to write their own search warrants -- the statute�s newspeak terminology calls them �national security letters� -- and serve them on a host of persons and entities that regularly gather and store sensitive, private information on virtually every American,� he warned.

The USA Patriot Act (the acronym for �Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism�) was rushed through Congress in the wake of the terrorist attacks of Sept. 11, 2001, and granted sweeping surveillance and prosecutorial powers to the government against suspected terrorists, their associates and financial supporters, and others, without providing for oversight and accountability and despite constitutional restrictions and boundaries.

In 2003, on request of the Justice Department and in the face of enormous opposition from groups as far apart politically as People For the American Way and Gun Owners of America, Congress expanded these powers even further in PATRIOT Act II.

The present fight is over 16 particularly egregious provisions that are essentially temporary due to sunset clauses. These include authorization for roving wiretaps, �sneak and peak� orders that allow the FBI to search a person�s residence without notification for days and months after the fact, secret warrants for records, and many others.

If the conference report is approved, 14 of the 16 sections will become permanent and no longer subject to �sunsetting,� including Sec. 213, which authorizes �sneak and peak� searches for almost any reason, even reasons unrelated to terrorism. Only two of the 16 would continue to have a four-year sunset provision: Sec. 206, that allows for "roving" wiretaps on cell phones, and Sec. 215, authorizing seizure of personal records, including business records, medical records, library records, firearms records and any other �tangible evidence.�

Under these provisions the government can search a home without letting the resident know (sneak and peak), secretly access personal records without probable cause, monitor emails and the Internet sites a person visits, wiretap someone without the person�s name being on the warrant, seize property without a hearing; share information about a person with the CIA, and incarcerate non-citizens indefinitely.

Attaching strings to power

The weeklong debate provided glimpses into the history of the 16 sections and the Patriot Act itself.

�Some may wonder how these sunset provisions worked their way into the Patriot Act,� said Sen. Patrick Leahy, D-Vt. �They were put there by the Republican leader of the House, Dick Armey of Texas, and myself.�

Leahy explained that despite differences between their political philosophies, he and Armey agreed that when great powers are given to the government, there must be strings attached, no matter whether it�s a Republican or Democratic administration.

�Leader Armey and I insisted on those sunsets to ensure that Congress would revisit the Patriot Act within a few years and consider refinements to protect the rights and liberties of all Americans more effectively, and we prevailed on that point,� Leahy recalled.

�Sadly, the administration and some in the leadership in the House and Senate have squandered key opportunities to improve the Patriot Act. The House-Senate conference report filed last week by Republican lawmakers falls short of what the American people expect and deserve from us. The bipartisan Senate bill, which the Senate Judiciary Committee and then the Senate passed unanimously, struck a better balance.�

This Senate bill -- S. 1266, by Sen. Pat Roberts, D-Ks -- was referred to several times during the debate. It was by no means perfect from a constitutionalist point of view. For one thing, S. 1266 continues to authorize abuses already in the Patriot Act, but so does H.R. 1399. For example, under S. 1266 the FBI would be allowed to seize any business records, including those involving firearms sales, it believes might be relevant to an anti-terrorism investigation -- without seeking permission from any court. Still, it had been passed. Why the arguing at a time when Congress would normally be getting ready to adjourn if it hadn�t done so already?

Sen. Russ Feingold, the only senator to vote against the Patriot Act in 2001, explained why and at same time made it very clear who he feels is responsible for the present discord.

�The only reason we are debating this conference report in the middle of December, rather than in the middle of September or October, is because the House -- the House -- refused to appoint its conferees for three and a half months,� he said.

Republican �brinksmanship

Here�s what happened. In mid-July, the House and Senate each passed a Patriot Act reauthorization bill. Normally bills after passage go to a conference committee comprised of conferees, appointed by their respective houses, who try to iron out the differences between the two. In the case of the Patriot Act, although the Senate leadership designated its conferees immediately, the House did not make its appointments until Nov. 9.

�We were ready and willing to start the process of resolving our differences with the House right away, leaving plenty of time to get this done without the pressure of the end-of-the-year deadline,� said Feingold. The House, however, �dragged its feet.�

Feingold said he gets �a little bit frustrated� when members of the House try to blame those in the Senate who object to the conference report, and he blamed the House leadership for playing �a game of brinkmanship� with the issue.

�Senators who are standing strong for the rights and freedoms of the American people will not be at fault if parts of the Patriot Act expire,� Feingold exclaimed.

�This shocking revelation�

Critics of the bill got a major boost Friday by way of a front-page story in the New York Times disclosing that hundreds, possibly thousands, of Americans had had their international phone calls and e-mails monitored by the federal government without a warrant. The article said Bush had signed an executive order in 2002 authorizing super-secret National Security Agency, to intercept international phone calls and e-mails by U.S. citizens, as many as 500 at a time, without obtaining warrants.

The article prompted a quick response from outraged senators.

�I hope this morning�s revelation drives home to people that this body must be absolutely vigilant in its oversight of government power,� said Feingold. �I don�t want to hear again from the Attorney General or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care. This shocking revelation ought to send a chill down the spine of every American.�

�Today�s revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote,� said Sen. Charles Schumer, D-N.Y.

And Senate Judiciary Committee chairman Arlen Specter, R-Pa, while noting that the Patriot Act doesn't affect the work of the National Security Agency, described the activity as �inappropriate,� and promised to conduct hearings in January when Congress returns from its winter break. But Specter�s concerns were not enough to override his basic approval of the Patriot Act, and when the time came he voted with fellow Republicans.

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With the bill on hold the future of the 16 provisions is unclear. The House left Washington Monday, but could return later this week if called back. The administration and Senate leadership are pressuring senators to reconsider their vote and fall in line beind the president. Sununu has asked why the rush?

�We could pass a six-month extension or take up the Senate bill [S. 2082, for a three-month extension] which is on the calendar and still respect important freedoms. We need to be more vigilant and we can do better,� he said.

Related Articles

GOP Terrorizing the Constitution
President Not Above the Law
GOP-Controlled House OKs Patriot Act

Other Sources

1, The different bills -- their text, status and ongoing changes -- can be read online at [Read]
2, Patriot Act, 2001

3, How Congress Has Assaulted Our Freedoms in the Patriot Act, by Andrew Napolitano
4, Bush Lets U.S. Spy on Callers Without Courts (New York Times)
5, The FBI�s Secret Scrutiny (Washington Post)

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�I hope this morning�s revelation drives home to people that this body must be absolutely vigilant in its oversight of government power,� said Feingold.