WASHINGTON — Four years after the Sept. 11 attacks on New York and the Pentagon, how willing is Congress to still support extraordinary measures to fight the threat of al-Qaida and its jihadist allies?
At issue before the Senate this week were two defining tests of the current backing for wartime measures: a bill to extend provisions of the USA Patriot Act, which Congress originally enacted in the weeks after Sept. 11, and a proposal by Sen. John McCain, R-Ariz., to ban “cruel, inhuman, or degrading treatment or punishment” of people held in U.S. custody.
Sen. John Sununu, R-N.H., who opposes extending the Patriot Act provisions because he thinks they infringe on civil liberties, said the newly resistant attitude toward key parts of the law “signify a desire on the part of Americans to look carefully at laws that were implemented after Sept. 11 and make sure they strike the right balance.”
The Senate sponsor of the renewal of the Patriot Act, Senate Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., said there had been a lessening in the sense of urgency in Congress over the need for strong Patriot Act provisions. "The further you get away from Sept. 11, as terrible as it was, the less it's on people's minds and it could happen any time," Specter told reporters Thursday.
Sununu and others support a three-month extension of the existing law. Senate Majority Leader Bill Frist opposes that.
Specter says the current version of the bill includes new protections for civil liberties and makes substantial improvements in the law. Among them:
- Delayed notification of searches. Under the new version of law, the government must notify those whose offices or homes have been searched within 30 days. The current law only requires that notice be given within a “reasonable” time — a term it does not define.
- Sunset provision: Section 215 of the law empowers a special federal court, under the 1978 Foreign Intelligence Surveillance Act, to issue secret orders requiring businesses or institutions to turn over records concerning suspected terrorists or foreign agents. Under the revised law, this section will expire in four years, instead of in ten years as some House members wanted.
These changes and others haven’t satisfied Sununu and Democrats who could use procedural delay of unlimited debate, the filibuster, to try to kill the bill or force negotiations on changes to it.
How to beat a filibuster
Specter was working hard Thursday to find the 60 votes needed to overcome the filibuster. At one point, he trotted down a Senate hallway to stop Sen. Joe Lieberman, D-Conn., and urge him to support the bill.
A vote to stop a filibuster and allow a vote on the bill itself is set for Friday morning.
Senate Democratic Leader Harry Reid, who opposes the bill extending Patriot Act provisions, told reporters that the vote will be "very very close. ... It's no better than even money either way."
"Everyone knows we rushed to judgement when it passed it after 9/11," Reid said.
He said certain provisions of the bill such as Section 215 were "against everyday Americans' civil rights."
Specter's answer to that: Critics have not closely read the bill. "If you paint with a broad brush and pound the 'civil liberties' drum, everybody is supposed to follow the beat," he said.
This — like most things in Washington — has a political ingredient in it.
The prevailing wisdom on Capitol Hill is that the Democrats lost Senate seats in the 2002 election due to their delay of the homeland security bill in a dispute over labor union protection for employees and Democrats lost Senate seats in 2004 due to their filibuster of judicial nominees.
Thus, a filibuster of the Patriot Act welds together two issues — filibusters and national security — that have hurt Democrats in the last two elections.
Republican National Committee chairman Ken Mehlman was quick to seize on the political implications.
“In 2002, voters rejected the Democrats when they decided to play politics with our national security by blocking the creation of the Department of Homeland Security, at the behest of government employee unions,” Mehlman said. “Voters will react the same way in 2006 if Democrats block the reauthorization of the Patriot Act to appease the hard left. The Patriot Act has helped keep the American people safe for 4 years and should be permanently extended.”
When the House voted Wednesday to extend the expiring Patriot Act provisions, the 44 Democrats voting “yes” included Democratic Whip Steny Hoyer, Democratic Congressional Campaign Committee chairman Rahm Emanuel, (the man in charge of leading the Democrats to the House majority in next year’s elections), and Rep. Jane Harman, the senior Democratic member of the Intelligence Committee.
Emmanuel is always worth watching: House Republican staffers say he is the one member of the House Democratic leadership whose political skills they fear and respect.
And Frist made a point of noting Emmanuel’s vote this afternoon, essentially making the case that if the law is good enough Emmanuel it ought to be good enough for Senate Democrats.
Four Republicans against Patriot Act
But this argument might not work. The difference between the politics of 2003 and 2004 and the current standoff over the Patriot Act is that Sununu and three other Republican senators (Idaho’s Larry Craig, Nebraska’s Chuck Hagel, and Alaska’s Lisa Murkowski) have joined Senate Democratic Leader Harry Reid in opposing the bill.
All Sununu was asking for, he said, was “a few modest improvements in the bill.”
The core problem with the law, Sununu said, was section 215 and a device called “national security letters,” which are essentially administrative subpoenas. In most cases, persons receiving demands for documents under these parts of the law are not permitted to discuss them — what opponents of the law call a “gag order.”
“It does not undermine law enforcement’s ability to deal with terrorist threats to allow a meaningful judicial review of a gag order,” Sununu said. “This is a restriction on free speech and in America if we are going to argue that speech should be restricted for national security purposes we can at least allow someone their day in court.”
But Specter says that the law requires the recipient to keep quiet about national security only when the government certifies that disclosure will result in a danger to national security. Sununu, Specter said, is "not familiar with the bill."
Bush long ago lost the rhetorical battle over the McCain proposal, and by doing so lost the substantive battle as well.
McCain provision on detainees
Most headline writers, most reporters, and McCain himself called his measure the “torture amendment.”
That was inaccurate, and perhaps in the case of supporters of the amendment, deliberately so, to build public support for the measure.
In fact, torture is already forbidden under U.S. law.
Title 18 of the United States Code, section 2340, forbids torture, provides a 20-year jail sentence for those who commit torture, and permits the death penalty for the person who commits torture resulting in the death of the victim.
McCain seemed to have won his battle with President Bush on the treatment of detainees. McCain went to the White House Thursday afternoon to announce with president that Bush had accepted McCain’s language, despite Bush’s previous threats to veto any bill containing it.
But the battle over the amendment is not over.
Rep. Duncan Hunter, R-Calif., the chairman of the House Armed Services Committee, said he would try to block enactment of the McCain provision unless he gets a letter from the president's national security adviser assuring him that it would "result in the same high level of intelligence-gathering capability that we presently have."
He said he still needed to be convinced that "we are not degrading our intelligence ability."
When a reporter asked Hunter whether he had gotten indications from intelligence officers that the McCain language would impede intelligence gathering, he said, "Yes."
Both military and non-uniform intelligence operatives would be exposed to lawsuits and possible prosecution, he said.
"It is very important that we don't make it so difficult and create so much exposure for our people who risk their lives to serve us in the intelligence service and in our special operations forces and in our line units, that they don't sign up to do it anymore," Hunter said.