Patriot Act Reauthorization: Implications and Politics

May 25, 2015 Updated: April 23, 2016

The latest fuss in Washington has focused on the set of provisions of the Patriot Act set to expire on June 1.  In true Washington fashion, the procrastination of approaching the reauthorization led to late night and weekend theatrics in the Senate, which still did not yield any tangible results.  Specifically, Section 215 of the Patriot Act, which amended the Foreign Intelligence Surveillance Act, or FISA – a critical statutory authority for conducting signals intelligence – in the wake of the 9/11 attacks.  The issue facing lawmakers is whether or not to reauthorize/reform the controversial program that includes the bulk collection of phone records unearthed by Edward Snowden and recently ruled by a federal court of appeals to be beyond statutory authority.

Aside from the controversial bulk collection provision, there are other provisions that would expire Monday at 12:00 am as well – the so-called “lone wolf” provision and “roving wiretapping” provision.  The lone wolf provision expanded the government’s definition of “agent of a foreign power” under FISA’s preexisting language to include “a non-U.S. person who ‘knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.'”  The Congressional Research Service expounded: “Because FISA orders—including those for surveillance, physical searches, pen registers, trap and trace devices, and business records—require evidence indicating that a target is a foreign power or its agent, the broadened definition makes the authorities applicable to targets for which a link to an international terrorist organization or other foreign power is not yet supported by probable cause.”

“I’m worried about it,” House Armed Services Committee Chairman Mac Thornberry (R-TX) stated Sunday regarding the potential sunset of portions of the Patriot Act.  “We passed, what I think is an imperfect bill out of the House but it’s better than letting it expire.  Among the other provisions that expire are the lone wolf provisions, which are exactly the sort of threat we’re going to see more of here at home – so we need to have that crucial intelligence capability continue.”

The roving wiretap provision “permits roving or multipoint wiretaps where the Foreign Intelligence Surveillance Court finds that the actions of the target of the application for electronic surveillance under FISA may have the effect of thwarting the identification of a specific communications or other common carrier, landlord, custodian, or specified person to whom the order to furnish information, facilities, or technical assistance in connection with the wiretap should be directed,” the Congressional Research Service wrote.  This means that a wiretap will follow a particular person and not a device, in other words, it allows constant surveillance of a target who attempts to mask their movements by adjusting living habits or acquiring new electronic devices to evade detection.  The finding that a target is attempting to evade surveillance must be “based upon specific facts provided in the application” to the FISC.

Leaders in the Executive branch that enjoy the powers of so-called expanded surveillance authority have called on Congress to reauthorize, or at least, reform the provisions expiring.  “Our biggest fear is that we will lose important eyes on people who have made it clear that their mission is to harm American people here and abroad,” said Attorney General Loretta Lynch.  “I think that we run the risk of essentially being less safe.”

The recent theatrics in the Senate have forced Senate Majority Leader Mitch McConnell (R-KY) to call members back a day early from their week-long vacation to try and pass something to keep the spying authorities intact.  McConnell’s latest blunder in legislative tactics have a two-fold impact.  First, the prospect that the spying authorities could expire will signify Congress’s ineptitude to act hastily in matters of great importance.  Congress has demonstrated it is capable of acting in a timely manner as evidenced by the relatively quick passage of a measure to approve the Keystone Pipeline despite the president consistently maintaining he would veto the legislative measure if approved.  Keystone aside, some have lauded the Congress’s action in reauthorizing expiring surveillance procedures in the past to bolster arguments for including sunsets in other key laws related to national security legislation, such as an authorization for military force.  “The successful sunset clauses in the surveillance context have not signaled to anyone that Congress lacks the resolve for aggressive U.S. surveillance past the sunset date…Similarly, a sunset on an [authorization for use of military force] will mean, and should signal, only that in our democracy it is prudent that Congress reconvene to assess and update the President’s authorities to use force every few years,” wrote Jack Goldsmith, professor at Harvard Law School.  The sunset of portions of the Patriot Act, which a majority of members do not wish to see, will refute this argument claim made by Goldsmith and many others in this context. 

Second, the prospect that the surveillance provisions could expire might damage McConnell’s image as someone that can govern.  After the whopping defeat of Democrats in the 2014 midterm elections, the discussion surrounded whether or not Republicans, now in the majority of both houses of Congress, could effectively govern – this after years of dissent and criticism from Republican senators who held the minority for the last six years.  McConnell did not favor the House measure to reform the surveillance state, which passed by an overwhelming margin  and led to a rather peculiar strategy preceding votes – put the House measure up for a vote and hope it fails as to pass a “clean” reauthorization.

However, following an 11 hour filibuster by presidential hopeful, Senator Rand Paul (R-KY) and his procedural measures to block the passage of legislative measures to avoid surveillance authority expiration have put Senator McConnell in a bind.  Aside from the political risk McConnell took – in terms of putting other legislative measures before surveillance and waiting until the last minute to address the issue – which has put into question his political clout – the rift with his Kentucky coalition member has also engendered an interesting political skirmish.  As the Washington Post reported, the two senators remain coy relaying amicable messages regarding their continued friendship and political alliance despite disagreement on the surveillance issue (McConnell has also endorsed Paul in the presidential run).   It will be interesting to see how their relationship plays out in the future – especially if the move damages McConnell’s clout within the party – an unlikely prospect, but intriguing nonetheless.