In Debate Over Patriot Act, Lawmakers Weigh Risks vs. Liberty

By: PETER BAKER of The New York Times

Just one senator voted against the Patriot Act, calling it a violation of civil liberties when it passed in the frightening, angry days after the attacks of Sept. 11, 2001. Nearly 14 years later, 77 senators voted to advance a bill ratcheting back its expansive scope.

To libertarians and civil liberties advocates, the shift underscores an evolution in thinking about the risks and trade-offs of terrorism, a recognition that perhaps the country went too far out of fear and anxiety. To national security conservatives, it represents a dangerous national amnesia about the altogether real dangers still confronting the country.

Beyond Washington, though, the debate that has consumed Capitol Hill in recent days reflects a country still deeply conflicted over the right approach to the threats of the 21st century. Even if Congress ultimately restricts domestic surveillance, it will leave intact the vast majority of the post-Sept. 11 programs authorized by two presidents. And the counterterrorism infrastructure built in recent years has become firmly embedded in American society.

Despite the Boston Marathon bombings and other violent attacks, Americans feel less scared of terrorism at home than at any point since Sept. 11, polls show, even as the rise of the Islamic State terrorist group in the Middle East and its beheadings of American hostages generated support for a tough response.

Americans want the government to go to great lengths to hunt down terrorists even at the expense of their own liberty, according to those surveys, yet also want limits on government spying because of privacy concerns.

"We want and need to be safe, but we're now in a better position to take a deep breath, step back and look more carefully about how best to balance the competing interests in security and individual freedom," said Geoffrey Stone, a University of Chicago law professor who served on President Obama's task force that recommended changes in surveillance programs.

The shift in Congress is hardly a wholesale repudiation of the policies enacted under President George W. Bush and continued under Mr. Obama. The Patriot Act, originally passed in October 2001, granted substantial new powers to the government in the interest of fighting terrorism, but only three provisions that temporarily expired Monday are now at issue, two of which have apparently been used only rarely.

Legislation that has wide support from both parties would restore all three of those provisions but would take the government out of the business of bulk collection of telephone and Internet data like the numbers, times and duration of phone calls, leaving that information in the hands of telecommunications companies instead. But the government would still have the power to systematically gain access to the data in order to analyze indirect links between callers, just as it had under the old program.

And many of the surveillance programs exposed by Edward J. Snowden, the former National Security Agency contractor now living in exile in Russia, remain in place, as does an enormous apparatus built up in the last 14 years in the name of defending the United States against attack.

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Still, for supporters of Russ Feingold, the Wisconsin Democrat and lone vote against the Patriot Act in the Senate in 2001, the alterations heading for likely approval in Congress are a long overdue vindication and correction.

"There was frankly an overreaction, and now over time and space, the American people are trying to figure out, O.K., what are the genuine threats there and what's the best way to use our resources and power?" said Farhana Khera, a former aide to Mr. Feingold and now president of Muslim Advocates, a legal organization.

"Hopefully," she added, "we're starting to see some sanity come back into the discourse."

Peter Swire, a Georgia Tech professor who has studied these issues for years, said the import of the new legislation went beyond the specific legal changes. "This is more than symbolic," said Mr. Swire, who also served on Mr. Obama's task force. "Congress is saying to stop bulk collection on Americans. That makes any future agency lawyer think twice or three times before authorizing a mass collection program."

But some of those who supported broader surveillance in the past said Americans should remember the reasons it had been initiated. "If you were there at ground zero or went to the Pentagon, you'd never want to experience that again," said former Representative Pete Hoekstra, a Michigan Republican who was chairman of the House Intelligence Committee.

The real overreaction, he said, has been to the disclosure of the programs by Mr. Snowden, which he said had not resulted in reports of widespread abuse. The government was collecting data about phone calls, he noted, not listening in on the conversations of Americans without warrants. "I don't think you could find one-third of Americans who understand what this does," he said.

Liz Cheney, a Bush administration official who along with her father, former Vice President Dick Cheney, has formed a group called the Alliance for a Strong America to press for tougher national security policies, said the legislation would recklessly leave the country exposed to danger again.

"Given that the terrorist threat we face today is at least as great as it was pre-9/11, it is indefensible for Congress to be stripping authorities away from our intelligence services," Ms. Cheney said. "Anyone who lived through 9/11 should recognize that we need to be able to track communications between terrorists inside the United States and those overseas."

The surveillance debate is part of a larger evolution in thinking about the war on terror over the last decade. Under pressure from court rulings and Congress, and hoping to leave behind a counterterrorism program that his successor would largely preserve, Mr. Bush scaled back some of the most controversial parts of his strategy before leaving office. He halted waterboarding and other torture techniques, emptied secret overseas C.I.A. prisons, and worked with lawmakers to ratify his previously unilateral surveillance programs.

Mr. Obama took it further by formally banning torture, and Senate Democrats on the Intelligence Committee last year released a report documenting what it called abuses during interrogations. But neither he nor Democrats when they controlled Congress jettisoned the bulk of Mr. Bush's counterterrorism strategy; Mr. Obama even went further than Mr. Bush in some ways by authorizing drone strikes against American citizens overseas.

But Mr. Obama tried to split the difference after Mr. Snowden's revelations about surveillance, proposing to end government bulk collection of telephone data while not dismantling more of the programs as demanded by his liberal base.

The struggle over surveillance is playing out in an environment radically different from the original Patriot Act debate. While 43 percent of Americans immediately after Sept. 11 worried about a terrorist attack in their home area, just 16 percent did in April, the lowest figure recorded in CBS polling since the attacks.

A report by the Pew Research Center last week found nuanced, even contradictory, public attitudes about surveillance. A majority of Americans (54 percent) said they opposed government collection of telephone and Internet data, and even more (74 percent) said they should not give up privacy and freedom for the sake of safety. But a plurality, 49 percent, said antiterrorism policies had not gone far enough to protect them, compared with 37 percent who said the government had gone too far in restricting liberties.

"This is an issue on which many people may have complicated feelings," said Carroll Doherty, Pew's director of political research. "They simultaneously worry about the government collecting personal data and that the government's policies might be inadequate to protect them from terrorism."

Comments

Glenn Moss

581 days ago

The ways by which we protect liberty are often at odds with the idea of liberty as we believe it to be in its reach. The challenge for a democracy and republic based on a core set of civil rights is how to protect these rights when threatened by external or internal forces. It is always easier to speak the words of liberty and freedom than to act on them in difficult times of terror and fear. What balances are you comfortable with as you try and live a daily life in America?

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Last Updated: 8/11/15