Patriot Act: Congress Shouldn't Rush to Judgment (Again)

(Note: This blog was originally posted by Senator Wyden on Huffington Post.)

Congress passed the USA Patriot Act six weeks after the terrorist attacks of September 11, 2001. The understandably intense fear and panic gripping the nation in those early days following the attacks fueled the near-record speed with which dramatic alterations to U.S. surveillance law were drafted, debated and made law. Many members of Congress -- myself included -- were concerned that the bill had not been adequately examined or thoroughly considered and managed to attach sunsets to the bill's most controversial provisions. The idea was that these provisions would be more thoughtfully debated at a later, less panicked time. The current expiration date for these provisions is December 31, 2009.

While there are several controversial provisions in the USA Patriot Act, the coming debate is likely to center around the "business records" provision. Prior to 9/11, if the FBI or another government agency was conducting an intelligence investigation and wanted to obtain an individual's personal records from a bank, hospital, library, retail store or whatever institution was holding them, the government had to have evidence indicating that the person whose records were sought was a terrorist or a spy. The Patriot Act changed the law to authorize the government to collect any records deemed "relevant to an investigation."

The consequences of this change are tremendous, as there are limitless interpretations of the word "relevant." And while it is known as the "business records" provision, it actually permits the collection of "any tangible thing" (such as blood or DNA samples) as long as it can be called "relevant."

I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence -- classified or otherwise -- that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security. Yet as Congress considers whether to reauthorize this standard -- written in a rush to judgment eight years ago -- some will undoubtedly argue that Congress should just trust that the provision is essential and blindly sign-off on reauthorization. I disagree. While "just trust us" has passed as informed national security debate in this country for eight years, it hasn't resulted in good national security policy. Indeed, the shortage of serious discussion of intelligence matters has frequently resulted in counterterrorism programs that are much less balanced and effective than they could and should be.

For example, on December 16, 2005, I -- like most Americans -- learned about the Bush Administration's warrantless wiretapping program from the New York Times. I -- like most Americans -- was stunned to learn that this program had been secretly operating for years in what I and many others view to have been clear violation of U.S. law. But I -- unlike most Americans -- am one of fifteen members of the U.S. Senate Select Committee on Intelligence. The Executive Branch has a legal obligation to keep me and my fourteen colleagues "fully and currently informed" of ongoing intelligence activities, not so we can give intelligence agencies a hard time, but rather to ensure that these programs are properly funded and operating both legally and effectively. The Bush Administration, however, never gave me a chance to help them craft an effective wiretapping program. Instead, they put together the highly imperfect, legally dubious program that I eventually learned about by reading the newspaper.

What my colleagues and I would later learn is that in the panicked days immediately following the terrorist attacks of September 11, 2001, a handful of Bush Administration officials made the unilateral judgment that existing surveillance law would slow down the government's ability to track suspected terrorists. Instead of working with Congress to update the law, these officials decided to work outside the law and create a warrantless wiretapping program that they hid from Congress and the public. It is unclear how long they thought they could hide a large, controversial national security program of this sort, but once the program was begun, the decision to carry it out was never adequately reevaluated. As the Inspectors General's report revealed last summer, this obsession with secrecy actually made Americans less safe, as the program was kept so secret that even when it managed to yield intelligence, tight classification restrictions sometimes prevented information from being shared with officials who needed it.

This wasn't the only side-effect of a handful of Bush Administration officials unilaterally deciding that they alone knew what was best for the country. Congress eventually modified relevant surveillance law, but only after years of divisive debate over warrantless wiretapping and retroactive immunity that left the American people less trustful of their government and undoubtedly made private companies less likely to cooperate with legitimate government activity.

This isn't the only program where secrecy and a rush to judgment resulted in national security policy that might as well have been drawn up on the back of an envelope. (Thesecret detention and coercive interrogation program is another obvious example, but there are other examples.) In each case, officials operating years after the 9/11 attacks failed to recognize that informed consideration of national security programs could be beneficial to national security. Instead officials spent their energy hiding and defending the hurried decisions that were made at a time of national panic, ultimately resulting in more difficult policy challenges down the road.

Congress has an opportunity to reverse this trend in its consideration of the Patriot Act's business records provision.

While the Obama Administration has taken laudable steps to release some information about how certain provisions of the Patriot Act have been used, more needs to be done for Congress to have an informed debate on this issue. Specifically, there is classified information that the public and the majority of my colleagues have not seen that, in my judgment, is essential to understanding the full scope of this issue. I and other senators have raised this problem with the Executive Branch in classified correspondence, and I hope that this information will be declassified soon. If it is not, however, I believe that the Senate should debate it in closed session to ensure that all senators are fully informed before casting their vote.

Striking a balance between protecting Americans' security and protecting American rights and freedoms is not always easy, but members of Congress have an obligation to try. While it is unfortunately too late to undo much of the harm done over the last eight years, Congress should learn from past mistakes and stop rushing to judgment. It is because these policies are so important that Congress must take the time to get them right.