For many liberal Democrats, the USA Patriot Act and the state secrets privilege represent twin controversial monuments to the post-Sept. 11 secrecy of the Bush era. The Patriot Act, which Congress passed just weeks after al-Qaeda's attacks and reauthorized in 2006, created sweeping new powers for the federal government that some critics on the left, as well as some on the right, see as unnecessarily broad at best and unconstitutional at worst. And in court, the Bush Administration frequently invoked the state secrets privilege the right to withhold information that compromises national security to block civil litigation and shield evidence from public scrutiny.
The Obama Administration aired its positions on both issues this week, to mixed responses and some disappointment from civil libertarians and left-leaning Democrats, who are already fuming at the White House over health care, Afghanistan and other issues. Liberals were not happy to hear, on Tuesday and again on Wednesday, Department of Justice officials urging Congressional committees to reauthorize three controversial powers that are set to expire at year's end: the Patriot Act's powers to grant roving wiretaps on unnamed suspects, and to force broad disclosure of documents, which some call the library records power; and the never-used authority, provided for in Intelligence Reform and Terrorist Prevention Act of 2004, for surveillance of lone wolf terrorists unaffiliated with any group or foreign nation. But on Wednesday, some liberals and open government advocates cheered Attorney General Eric Holder's decision to rewrite how and when the Administration invokes the state secret privilege.
Holder, who called the state secrets move an important step toward rebuilding the public's trust in the governments use of this privilege, laid out the new guidelines in a four-page memo specifying that state secrecy would only be invoked when genuine or significant harm to national defense or foreign relations is at stake. Danielle Brian, executive director of the non-partisan watchdog Project on Government Oversight, called the state secrets privilege an executive branch abuse that really needed to be curtailed, and Sen. Patrick Leahy of Vermont, a liberal Democrat, said he was pleased with the Administration's move. But Michael Macleod-Ball, acting director of the American Civil Liberties Unions Washington legislative office, was more cautious, saying that President Obama had essentially mirrored President Bush's policy until Holder's announcement. "We're hopeful that this will change their behavior in court," he said, "but in and of itself, the declaration of this new policy doesnt change anything."
The Democrats' left flank, meanwhile, has begun agitating for major changes to the Patriot Act. On Tuesday, New York Rep. Jerrold Nadler, a Democrat, said Congress should not miss the opportunity to review the act in its entirety. Several liberal Senate Democrats such as Sen. Russ Feingold of Wisconsin and Sen. Dick Durbin of Illinois, along with Independent Bernie Sanders of Vermont, have proposed a bill known as the Justice Act, which would curb many of the sweeping powers of the Patriot Act. The bill would reauthorize the expiring Patriot Act provisions, but would add new limits: roving wiretaps could no longer target John Doe suspects and would require identification of the target. It would also leave in place the ability of the Foreign Intelligence Surveillance Court to compel document disclosure, but would limit that power to the records of people connected to terrorism or espionage. It would make numerous other changes, such as limiting use of National Security Letters a power the FBI has misused in the past, according to the Inspector General of the Justice Department to force document disclosure and lifting telecommunication companies' immunity from civil claims arising from the Bush Administration's warrantless wiretaps.
One thing is conspicuously missing from Feingold's bill: The sponsorship of Sen. Patrick Leahy, the chairman of the Senate Intelligence Committee. Leahy has proposed a different bill, which does not go as far as Feingold’s. For example, it does not place the same strict limits on National Security Letters as Feingold’s. Assistant Attorney General David Kris, chief of the Department of Justice's National Security Division, said the Administration had not fully reviewed or taken a stance on either bill. Justice officials say they're willing to discuss added protections for civil liberties and privacy, but only so long as they don't dilute the government's authority to exercise its powers.