History of The USA PATRIOT Act - Reauthorization Legislative History

Reauthorization Legislative History

In June, the Select Committee on Intelligence met behind closed doors to consider a draft proposal by Pat Roberts (R-KS) which, among other things, would have removed the primary purpose of FISA warrants issued ex parte and in camera to be for foreign intelligence. Instead, the warrants could also have been used for purposes unrelated to foreign intelligence. This was condemned by the ACLU, with ACLU Attorney Lisa Graves complained that the secret hearings into the draft was "an attempt to force the debate onto their terms, versus where the momentum has been headed, which is to roll back the Patriot Act to bring it in line with the Constitution and make sure its tools are focused on terrorists, as opposed to Americans."

The committee's proposed legislation was introduced into the House on July 21 as the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005. It repealed the sunset date for surveillance provisions of the Patriot Act — in other words, it would have made those sections permanent. A number of amendments were also proposed and passed. Several of the amendments were to surveillance provisions and included an amendment that added to the list of terrorist crimes that could be used for obtaining electronic surveillance, the requirement that the Director of the FBI must personally approve any library or bookstore requests by the FBI under section 215, making law enforcement report back to a court within 15 days of using the a roving wiretap and the narrowing of the scope for "sneak-and-peek" delayed notification search warrants. Several other amendments were related to NSLs, including allowing those in receipt of an NSL the ability to consult a lawyer and challenge it in court and preventing the penalization of NSL recipients who are mentally incompetent, under undue stress, under threat of bodily harm, or under a threat of being fired if they disclose they have been served an NSL. Other amendments included standardizing penalties for terrorist attacks and other violence against railroad carriers and mass transportation systems on land, water, or in the air and clarifying the definition of terrorism in forfeiture laws. Congressman Howard Berman proposed an amendment that required a report to Congress on the development and use of data mining technology by departments and agencies of the Federal government. Other amendments were proposed to other areas not covered by the USA PATRIOT Act, for instance one amendment defined a new crime of "narco-terrorism," while another addressed crime and terrorism at U.S. seaports. The bill was passed 257-171 however when it was introduced into the Senate it was replaced by a bill proposed by Arlen Specter, S.1389. The Senate then requested a conference with the House.

The House responded on September 11 that they unanimously disagreed with the Senate amendment, and agreed to a conference. They then attempted to make a number of changes to the bill however it was not enough for Republican Senators Larry Craig, John Sununu and Lisa Murkowski, and Democratic Senators Dick Durbin, Russ Feingold and Ken Salazar, who wrote a letter threatening to block the bill if further changes were not made. The House duly proposed a House report, which was incorporated into a Conference report, which was then presented to the Senate. However, the Senate rejected the report, and on December 16 refused to end debate on legislation to renew the Act. A cloture motion was then ordered, but it failed, having fallen seven votes short of invoking closure on the matter, leaving the future of the Act in doubt. The vote went as follows: Fifty Republicans as well as two Democrats voted unsuccessfully to end debate; Five Republicans, 41 Democrats and one independent voted to block. With the sunsets threatening to expire, on December 21 the U.S. Senate came to a bipartisan agreement (S.2167) to extend by six months the expiring provisions of the Act. Under House rules, the House Judiciary Committee Chairman James Sensenbrenner had the authority to block enactment of the six-month extension. On the following day, the House rejected the six-month extension and voted for a one-month extension, which the Senate subsequently approved later that night. However, on February 1, the House voted to again extend the sunsets to March 10. The reauthorization Act was finally passed on March 2 by the Senate with a vote of 95-4, though this was opposed by Senator Feingold who unsuccessfully attempted to extend the sunsets. The House voted 280-138 in favour of authorizing the Act. Finally, on March 8, President Bush signed the reauthorization Act, declaring that "The Patriot Act has served America well, yet we cannot let the fact that America has not been attacked since September the 11th lull us into the illusion that the terrorist threat has disappeared" and that the White House would "continue to give the tools to get the job done." However, after the ceremony, he issued a signing statement that "The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties" — in other words, he would not feel bound to comply with some of the provisions of the law if they conflicted with other Constitutional laws. This immediately drew a sharp rebuke from Senator Leahy, who condemned the statement as "nothing short of a radical effort to re-shape the constitutional separation of powers and evade accountability and responsibility for following the law ... The President’s signing statements are not the law, and we should not allow them to be the last word. The President’s constitutional duty is to faithfully execute the laws as written by the Congress. It is our duty to ensure, by means of congressional oversight, that he does so."