The USA Patriot Act is so complex that even legislators who voted for it
do not understand some of its fundamental components.
Rhode Island's four delegates to Congress voted for the Patriot Act. As
recently as last month, Rep. Patrick Kennedy and Sen. Lincoln Chafee
said they believed the entire 342-page text of the Patriot Act would
expire or "sunset" at the end of next year.
"The whole thing is sunset," Kennedy said on June 22. "The whole act is
sunset. . . . End of story, goodbye. In order to do anything forward you
have to start from scratch."
"It expires," Chafee said on June 16. "I thought it was almost all the
act [that sunsets], but I'll have to find that out."
In fact, only 15 of the Patriot Act's 158 sections will expire on Dec.
31, 2005.
All of the portions that do sunset are in the 200 section, titled
"Enhanced Surveillance Procedures."
None of the expanded powers in other chapters or "titles" will expire,
and these include: allowing indefinite detention of foreigners,
forfeiture of property, and FBI issuance of National Security Letters to
obtain business records. These became permanent law with the passage of
the Patriot Act.
REP. JAMES Langevin was the only member of Rhode Island's Congressional
delegation who said he read an entire draft of the Patriot Act. Langevin
read the 132-page proposal that the House Judiciary Committee
unanimously passed.
But the draft that Langevin read was not the proposal that was approved
by the full House. Langevin said that the Republican leadership changed
the bill that had been approved by the Judiciary Committee.
Before voting for the act Langevin protested from the House floor "the
clandestine way in which what was once a strong bipartisan package was
changed and rushed to the floor with no consultation with this
[Democratic] side of the aisle. . . .
"I want to provide our law enforcement with the tools they need to stop
terrorism," Langevin said from the floor. "I want to support this bill,
but few of us know what's in it since the Judiciary Committee never
considered it."
Despite his misgivings, Langevin voted for it, along with 356 of his
colleagues. The Patriot Act passed the House by 357-66; the Senate
approved it 98-1, with Sen. Russell Feingold, D-Wis., opposed.
"Remember the context that this was passed in," Langevin said recently.
"It was within 30 days of Sept. 11." Letters containing anthrax powder
had been sent to the Capitol, and the first victim of an anthrax attack
had just died.
Since he voted for the act, Langevin has had second thoughts about
Section 213 which gives agents authority to search property without
leaving a warrant.
"The one thing I clearly want to see changed in the act is the delay in
notification of the 'sneak and peek' provision of the Patriot Act,"
Langevin said.
REP. KENNEDY also cited the "context at the time" for his support of the
Patriot Act. "The nation was reeling from attacks that we haven't seen
since the Pearl Harbor attack," Kennedy said.
"People were wondering: 'How did these people get into the U.S.? How
could they have pulled off such a calculated and well-planned attack?
And what else could happen? What else could be out there? It was in this
context that the bill was passed."
Since the bill's passage "we've heard a lot from constituents," Kennedy
said. "It's understandable. This is a big deal. It sparks a lot of
concern, as it should. This isn't light stuff; this is really heavy."
His constituents mostly "hate the Patriot Act," Kennedy said. But he
doesn't share their contempt.
"We've got to do whatever it takes to avoid another attack," Kennedy
said. "We've got to give law enforcement everything it needs to stop
another attack. I think everybody feels that way. . . . If we have
another attack on the scale of 9/11, civil liberties will be an
afterthought, because our Constitution will be gone with them."
Kennedy did not read the Patriot Act before voting for it, but he said
he knew what was in it. "This notion that people don't know what's in it
and just voted on it is just bogus. We have staff people. They briefed
me."
Kennedy said, "If anybody can honestly tell me what I'm supposed to do
in this kind of environment, tell me which side I'm supposed to vote on,
then I'm happy to do that."
REP. BARNEY Frank, who represents Southeastern Massachusetts, was the
only local congressman who voted against the Patriot Act. Frank chaired
the House Judiciary Committee when the Act passed and had voted for the
132-page version that his committee unanimously endorsed.
"I knew what was in the bill that came out of this committee," Frank
said on June 16. "After we voted on this bill in committee, the
Republican leadership" changed it.
"Almost nobody knew what was in the bill when we voted on it in the
House," Frank said. "It was the most undemocratic process on a piece of
legislation that significantly affects all of us that I have ever seen
in the House.
"What they got was all of the powers and none of the safeguards."
The bill approved by the House and signed into law removed "supervision
of law enforcement by judges," Frank said. "I don't think [law
enforcement] should be able to do whatever they want to do whenever they
want to do it."
Frank said he voted for the Patriot Act as drafted by the House
Judiciary Committee because "You've got to give law enforcement more
power. Deterrence doesn't work against suicide bombers.
"There needs to be more aggressive law enforcement. They need to have
full surveillance powers that meet current electronic devices.
[Surveillance] had to be extended to the Internet and to cell phones"
but requests for surveillance need judicial supervision.
Frank said he has several problems with the Patriot Act as passed.
"The thing where they can search you and never tell you [Section 213].
The privacy of libraries [Section 215].
"They make it too easy to get into the secret court, and we want to make
it harder."
The secret, Federal Intelligence Surveillance Court "should be reserved
for terrorists and spies, not for regular criminals," Frank said.
"Regular criminals are bad people, but there's no reason they need to
[be prosecuted] in secret. Open courts work."
PASSAGE of the Patriot Act in the Senate, where it passed 98-1, was not
as contentious as it was in the House.
Sen. Lincoln Chafee said he voted for the Patriot Act because the Senate
Judiciary Committee chaired by liberal Democrat Patrick Leahy of Vermont
unanimously approved it.
"We do have to trust the members of these committees," Chafee said.
"Sen. Leahy is a frequent critic of the Bush administration and fiercely
partisan. For him to agree to this, it was significant.
Chafee said, "We do the best we can to understand it, but oftentimes you
don't have the full time to read every word. . . .
"To be honest, I feel there's been some misconceptions about the Patriot
Act. Yes, there are areas that we should look at, but all in all I don't
feel it deserves the criticism that it's been getting."
Chafee said the act is mostly "a modernization of existing laws" and
that Congress showed "a rare wisdom" by including the sunsetting clause.
Rhode Island's senior senator, Sen. Jack Reed, said he may sign on as a
sponsor of a bill that would limit the government's use of sneak and
peek search warrants, roving wiretaps and records searches.
"There are ways we can [fight terrorism] without riding roughshod over
civil liberties," Reed said. "We need more specification on the
definition of terrorist; more specification on what law enforcement must
show to obtain a warrant; more specification of what they must disclose
to show that they are conducting these surveillance operations."
Reed said he had a good understanding of the Patriot Act when he voted
for it. "This was a very, very high profile bill coming through. Staff
was fully versed on it. I think we understood, I understood, that these
were unprecedented powers, but it was an unprecedented time."
Now "there's some obvious concerns: the scope of subpoenas with regard
to electronic surveillance; notification of search warrants; authority
to declare certain individuals inadmissible to the United States;
privacy protections as far as access to educational and medical records.
There is a long, long list of concerns as will be addressed in the
context of 2005.
"Frankly it's interesting because these [concerns] are coming from both
ends of the spectrum. It's not a left/right dichotomy, and I think we
will see some legitimate and constructive action" after the elections
are over.
Reed said he has received more than 800 letters about the Patriot Act,
most of them critical.
"It is very, very useful. This is a healthy sign, a very healthy sign
about why this country is different and stronger than other countries,
because we can tolerate dissent.
"Without the scrutiny of the people, well-meaning people could have done
things that we'd all regret."
Gerald M. Carbone may be reached at
gcarbone [at] projo.com or (401) 277-7434.
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