The Senate Judiciary Committee has passed legislation extending the Patriot Act without a proposal by Senator Feingold that would, in effect, eviscerate an important 13-year old-statute that makes it illegal to provide material support to foreign terrorist organizations.
The committee approved by an 11-8 vote and sent to the floor a compromise bill that extends, with modifications, Patriot Act provisions allowing “roving wiretaps” on multiple phones, access to business records and a never-used “lone wolf” provision to conduct surveillance of non-U.S. citizens who may not be part of a recognized terrorist group. These provisions expire at the end of this year unless extended by Congress.
The bill is S. 1692, USA PATRIOT Act Sunset Extension Act of 2009, sponsored by Senator Patrick Leahy of Vermont, the Committee Chairman, and co-sponsored by members Senators Benjamin Cardin of Maryland and Ted Kaufman of Delaware, all Democrats. The bill also received the important co-sponsorship of Senator Diane Feinstein (D-CA), chairman of the Senate Intelligence Committee after modifications were made Oct. 1.
Before passage yesterday, the Judiciary Committee approved several Republican amendments. Reflecting the divided views, however, only two Republicans voted for the bill on final committee passage and three Democrats voted against it, as described in the Wall Street Journal.
The committee did not take up a provision in a substitute bill S 1686, by Senator Russ Feingold (D-Washington) that would gut the Material Support provision of the Antiterrorism and Effective Death Penalty Act of 1996.
For more details, see my October 1 posting “Material Support: Killing it with “Humanitarian Kindness.”
Sen. Feingold’s bill would severely undermine the material support provision by inserting into 18 U.S. Code Sec 2339B (a) (1) language that says the contributions to such groups would be illegal only if assistance was provided “knowing or intending that the material support or resources would be used in carrying out terrorist activities.”
If enacted, the Feingold amendment would make it easy for persons indicted for providing funds, financial services, or even physical support such as vehicles, to claim they did not know the assistance “would” be used for terrorist activities—even though the organization had been formally and publicly designated by the State Department as a foreign terrorist organization after a long administrative record process that could be challenged in court.
A committee source said there were some Republican proposals to strengthen the provision but the committee had enough on its plate without getting into that issue.
A close observer of the committee told the Counterterrorism Blog that the Feingold provision appeared dead. The Wisconsin senator’s office has not returned repeated calls and emails seeking their comment.
In a committee statement issued by Senator Leahy's office, the chairman said :“I remain mindful of our responsibility to ensure both security and liberty as we proceed,” said Leahy. “Our bill will provide the tools that are needed to protect us, while increasing the protections of our vital constitutional rights, as well. We have taken the administration up on its offer to work with us to ‘provide additional protection for the privacy of law abiding Americans’ and have done so without undermining the operational effectiveness of the counterterrorism tools provided in the Patriot Act.
Senator Cardin, who chairs the Judiciary Terrorism and Homeland Security Subcommittee said “our priority is to protect the American people – both safety and civil liberties,” We must make sure that our law enforcement and intelligence professionals have the tools they need to prevent and disrupt terrorist attacks, while maintaining an appropriate balance between national security and protecting civil liberties. With these parallel goals in mind, I believe the Judiciary Committee took the right action today to extend the provisions that expire at the end of the year. This legislation provides stronger Congressional and judicial oversight of the Patriot Act, as well as new limits on the use of National Security Letters.”
As expected, the ACLU was not satisfied. Michael Macleod-Ball, Acting Director of the American Civil Liberties Union (ACLU) Washington Legislative Office said in a statement:
“We are disappointed that further changes were not made to ensure Americans’ civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportunity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans’ Fourth Amendment rights.
The ACLU complained that “Amendments that were offered but failed by voice vote included an amendment by Senator Richard Durbin (D-IL) to curb the abuse of the overly broad National Security Letter (NSL) statute and another offered by Senator Russell Feingold (D-WI) to allow the “lone wolf” provision to expire (the never-used provision that targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.”
It is uncertain when the bill will reach the Senate floor in view of other pending business, including health reform legislation. Passage is needed in time to allow for the Senate-House conference on a final version and Congressional enactment before the end of the year.