Dispatches from the Creation Wars

Before I get into the specific provisions that concern me, I want to say how disappointed I was in the debate in the committee. Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department. Keeping Americans safe is everyone's priority. But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms. Protecting the rights of innocent people should be a part of that equation. It's not the Prosecutors' Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms.

And he criticizes the administration for taking one position in public and a different one in private:

I am also very troubled that administration officials have been taking positions behind closed doors that they are not taking publicly. I am pleased that we have not heard the type of public fear-mongering from this administration that was such a regular part of the discourse in the past. But if the administration wanted to further water down the already limited reforms in the bill that was on the table, they should have said so openly. Instead, at our only public hearing we were told that the Justice Department did not have positions on the crucial issues about to be discussed. Then, over the past week, in classified settings, the Department has weighed in against even some of the limited reforms that Sen. Leahy originally proposed. That led to the unusual spectacle today where many members of the committee based their decision to further weaken the bill on a classified briefing held yesterday, but could not fully discuss or debate their reasons. As a member of the Senate Intelligence Committee, I am privy to every bit of the classified information that was referred to today. And nothing presented in the classified briefings justifies the failure to address the real problems with the expiring Patriot Act provisions and other intrusive powers.

And pointed out some of the specific problems that forced him to vote against the bill as it was reported out of committee:

Specifically, the bill reported out of the Committee today on an 11-8 vote (five Republicans and only three Democrats voted No) fell short in a few key areas. Perhaps the most important was the failure to include the reasonable 3-part standard for issuing a FISA business records order under Section 215 of the PATRIOT Act. This standard was in a bill unanimously reported by the Committee, under Republican control, in 2005, and it was in Sen. Leahy's original bill this year. Last week, Senator Durbin offered an amendment to put the standard back in the bill. It would have ensured that these secret authorities can only be directed at individuals who have some connection to terrorism or espionage. The standard is broad and flexible, but it places some limits on this otherwise very sweeping authority. Unfortunately, Senator Durbin's amendment failed. When it did, I hoped the Committee would instead consider at least adopting that same standard for issuing National Security Letters, which are not approved by any court, and which were seriously abused by the FBI. Today, that, too, was rejected.

I suppose one could call this a total cave-in, as I have in the past. But is it really caving in? Or is this just the Democrats' real position, period? Clearly there are a few genuine civil libertarians fighting the good fight, but they do not have the majority even within the Democratic caucus to get anything done. At every single step - the Patriot Act, the Patriot Act reauthorizations in 2005, the FISA amendments in 2008 and now the Patriot Act reauthorizations in 2009 - a majority of the Democrats in Congress are taking a position that is virtually indistinguishable from that of George W. Bush.