In the weeks immediately following the attacks on the United States on September 11, 2001, the United States government faced a legislative quagmire of unprecedented complexity. The President of the United States, George W. Bush, and his team of advisors had been sworn into office less than nine months prior; Congress faced an unprecedented act of terrorism on US soil, the origin a suspected militant foreign terror group known as al Qaeda; and the general population of the United States was fractured, between a sense of deep mourning over the losses of 9/11, and the growing fear of terrorism at home. In an attempt to show strength and control in a time of national crisis, both the Executive and Legislative branches of the government acted in a manner that has been referred to as “rushed” (Wong, 2), in summarizing the legislative course of action that transpired between September 12, 2001 and the signing into law of the USA PATRIOT Act (USAPA) on October 26, 2001 by President Bush. The purpose of this paper is to analyze the legislative process as it unfolded during that time, examining the political players and parties involved at each major juncture, and whether the USAPA was a justified piece of legislation or a “rush job” by the Bush Administration for broader surveillance authority and discretionary powers.
A Brief Summary of Surveillance Tactics Prior to 9/11
To highlight the main issue behind the legislative wrangling during the creation of the USAPA, a brief overview of surveillance tactics and the governance of policy prior to 9/11 should be considered in order to properly frame the debate. Surveillance in the United States had largely been lumped into two broad groups: surveillance conducted by domestic sources such as law enforcement on US citizens, or surveillance conducted by the US on foreign agencies, countries, persons, or businesses. Within both groups, typically four main approaches were taken toward meeting “burden of proof” measures: interception orders, search warrants, “pen register” and “trap-and-trace device” orders, and subpoenas (Electronic Frontier Foundation, 2003, IA paras. 1-4). In each of these measures, legal requirements were imposed to serve as “checks and balances” toward the invasiveness of varying types of surveillance.
The Foreign Intelligence Surveillance Act (FISA) differentiated the rules governing surveillance of foreign and domestic targets, largely based on the concept of criminality. Domestically, if the target of surveillance was a US citizen and not identified as an “agent of foreign power” or a “foreign power” (EFF, 2003, para. 5), the government would have been required to demonstrate some level of burden of proof of criminality in order to obtain one of the four types of surveillance methods. FISA allowed for a much looser interpretation and process for obtaining permission for surveillance, as long as the parties involved were foreign entities. Things became more complicated if one of the parties involved was a U.S. entity.
These hindrances were amongst the chief concerns of the Bush Administration in the aftermath of 9/11, as they sought increased ways to intercept and prevent attacks in a proactive manner, rather than wait for a terrorist plot to be fully in the works. Likewise, many “gray” areas under FISA in the wave of new technology were not addressed either in FISA provisions or under the more traditional domestic surveillance policies. In an age of cell phones, voice mail (rather than tape recordings), e-mail and digital communication technology, surveillance methodology of the past had quickly and dramatically proven insufficient in the wake of 9/11 (Brill, 2003).
The Legislative Process of USAPA
The first attempt by members of the U.S. Congress to enact legislation intended to broaden the scope of the government was made as an amendment to existing budge appropriation legislation in the Senate. Known as the Combating Terrorism Act of 2001 (CTA), or Amendment No. 1562, the CTA was cosponsored by Republican Senators Hatch (Utah) and Kyl (Arizona) and Democrat Senator Feinstein (California). Additional bipartisan support signed on to this Bill including Senators DeWine (R-Ohio), Session (?-?), Thompson (?-?), Thurmond (?-?), McCain (R-Arizona), and Schumer (?-?). Hatch, Kyl and Feinstein all were members of the Senate Subcommittee on Technology, Terrorism, and Government and Terrorism in the 106th Congress, which later became the Subcommittee on Technology and Homeland Security in the 107th Congress (Wong, 2005, 9).
The pace of the post 9/11 legislative procedures was illustrated in the adoption of the CTA in the Senate when it passed in only two days with a total of only thirty minutes of debate and only one dissenting voice calling for more time to study the ramifications of the proposed CTA legislation: Senator Patrick Leahy (D-Vermont). Leahy, as the chair of the Senate Judiciary Committee, would eventually become one of the most embattled voices in the call for restraint and cooler heads to prevail in the weeks following 9/11.
The CTA, dubbed a “legacy of FBI efforts…during the Clinton Administration” (O’Harrow, 5), was not so much new ideology as a result of 9/11. It was a combination of measures that had been requested by law enforcement for years prior to the terrorist attacks of 9/11, and in many cases had nothing to do with terrorism at all. Rather, expanded surveillance opportunities had long been a debated issue between Congress and civil libertarians; however, the right mixture of fear and the need to act provided the timely conduit necessary to pass the CTA in record time.
Almost simultaneously to the legislation being driven through Congress, the Bush Administration was formulating its own response to combating terrorism in an age of new technology. Attorney General John Ashcroft had been instructed by President Bush shortly after the attacks to, “Make sure this can’t happen again” (O’Harrow, 18). Ashcroft called in a top advisor form the Department of Justice (DOJ), Assistant Attorney General Viet Dinh to construct the Administration’s response to the 9/11 attacks. Titled the Mobile Anti-Terrorism Act (MATA), Dinh along with veteran DOJ lawyer David Carp who had helped in the work done on the 1995 Oklahoma City bombing domestic terrorism measures, drafted a piece of legislation that had the teeth that the Administration sought (Brill, p.52). Elements of MATA also included reductions in the FISA limitations, allowing for domestic usage of surveillance tactics, including roving wiretaps, releasing of records and seizing of property without probable cause of criminality (Wong, 21).
Meanwhile, on September 14, another piece to the growing tumult was organizing in the D.C. office of the American Civil Liberties Union (ACLU). Led by former head of the Washington ACLU, Morton Halperin, a group of strange bedfellows assembled to begin work on what would eventually become known as the “In Defense of Freedom” 10-point public statement railing against the growing call for intrusive and expanded domestic surveillance tactics, and the perceived loss of civil liberties. Groups as diverse as the NOW Legal Defense Fund, Gun Owners of America, the Baptist Joint Committee on Public Affairs and the National Gay and Lesbian Task force were among the more than 150 organizations, law professors and computer scientists opposed to the direction proposed anti-terrorism legislation was taking (Wong, 24).
AG Ashcroft and FBI Director Robert Mueller briefed the press about the Administration’s intention to move quickly and forcefully on delivering a package of anti-terrorism reform policies crafted by the DOJ, which were designed to provide law enforcement with all of the tools necessary to prevent another attack. Ashcroft also called on Congress to pass the legislation within one week’s time. This timeframe took several members of Congress aback, especially Sen. Leahy, who wanted a thoughtful, carefully balanced approach to constructing such important legislation. Likewise, Leahy did not want to be seen as an obstructionist in a time of national crisis or run the risk of Democrats being labeled “soft” on terrorism. Leahy, along with the support of other Democrats, had been crafting their own legislation entitled the Uniting and Strengthening America Act (USA Act) (O’Harrow, 8). With three pieces of strong legislation in play (CTA, MATA, and now the draft of the USA Act), partisan lines beginning to form and the country in distress, a compromise was struck by Leahy to bypass the normal subcommittee wrangling and meet with congressional leaders, members of the White House and DOJ to formally exchange their proposals and hammer out areas of compromise.
Democratic members of congress including Sen. Leahy and Rep. John Conyers (Michigan), and Republicans including Senators Hatch, Richard Shelby (Alabama), and House Majority Leader Richard Armey (Texas) joined Dinh and others from DOJ, along with Roberto Gonzolas and AG Ashcroft in a meeting on Capitol Hill to discuss the details of the various plans (H.R. 2975, 2001) . Interestingly, the two bills issued from Congressional leaders (CTA and USA Act) were remarkable similar in their calls for modernization of outdated surveillance measures, increased capacity for roving wiretaps and a more relaxed burden of proof in order to obtain permission for intelligence gathering.
The Administration’s plan from DOJ, however, had two major concerns and an AG pressing hard for quick passage without floor debate or amendment. First, the DOJ plan called for almost unlimited access to the rules on engagement found under FISA, even domestically, thus virtually eliminating the burden of proof measure in any case the government deemed necessary. Second, there was no provision for a timetable to the expansion of such unlimited powers. Armey, who was a faithful conservative foot soldier in Congress, was amongst the most vocal in his call for a “sunset provision” (O’Harrow, 9). Ashcroft, who had originally hammered out a timeframe with Rep. Sensenbrenner (R-Wisconsin) to move the DOJ legislation quickly through the House for passage prior to the Yom Kippur holiday break on September 27, 2001, realized by the end of the meeting that more time would be required to sort out the conditions Congressional leaders were calling for.
The House Judiciary Committee, led by Rep. Sensenbrenner, held a “briefing” for concerned civil-libertarians who had voiced considerable concern over the encroachments into civil liberties they felt would result from the relaxation of FISA and other provisions in MATA (now being referenced as ATA) (Wong, 30). As a result of the hearings, Rep. Bob Barr and four other members of the House Judiciary Committee issued a letter in conjunction with the ACLU to Rep. Sensenbrenner outlining ten provisions that would need to be meet, including “significant further public debate” before adoption of the ATA bill would be considered (Wong, 32). The ATA Bill was declared dead on arrival on September 25, 2001 (Brill, 122).
President Bush made his support of the ATA bill extremely clear to Congress and the public. In separate statements issued to the FBI on the 25th, the CIA on the 27th and a direct appeal to the general public in his radio address on the 29th, Bush pleaded the case for expanded authority from Congress in the government’s efforts to combat terrorism.
Introduced to the House of Representatives as House bill 2975, the PATRIOT ACT (later to be known as the USA PATRIOT Act) was negotiated as a bi-partisan effort between Republican Sensenbrenner and ranking House Democrat John Conyers. By October 12, 2001, the text of the PATRIOT Act resembled significantly the work that was being done simultaneously in the Senate, and passed on October 12 with only 3 Republican and 75 Democratic votes in opposition in the House of Representatives.
The Democratic response to ATA, found in the USA Act originally drafted by Senators Leahy and Hatch, and introduce to Congress as Senate Bill 1510 by Senators Daschle, Lott, Leahy, Hatch, Graham, Shelby and Sarbanes (Wong 32) did not meet instant success. Tabled for almost a week, the Bill was withdrawn and resubmitted for a rewrite and a more comprehensive review by a “bi-partisan” team. The newly reworked USA ACT was brought to the floor by Sen. Daschle with a call for no floor debate and no amendment.
Senator Russell Feingold was the only Senator to oppose the legislation that would eventually become the USA PATRIOT Act. Citing major concerns about the bill that “was hurtling through the Senate,” (O’Harrow, 12), Feingold attempted to add amendments, despite Daschle’s calls to the contrary, to limit the government’s ability to go on “fishing expeditions” into personal records, private affairs, business records – regardless of the implication of criminality (Feingold, 2001). Despite Feingold’s objections, the legislation passed the Senate on October 11, 2001.
As members of both the House and Senate worked to resolve the language between HR 2975 and S1510, Capitol Hill faced another threat: anthrax (O’Harrow, 12). While members of Congress dealt with securing their own workspace, work on the USA PATRIOT Act came to a screeching halt for a full week.
The legislative process that transpired on October 23 was one of the most unusual seen in American history. The House debated the USA PATRIOT Act for one hour, without amendment, and with only two copies of the bill made available for the floor debate shortly prior to the debate. The debate itself was held late at night, after working hours and as a result, many members of the House felt “ignorant” as to the full nature of the bill when they voted. The Bill, passed as H.R. 3162 as the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” or the USA PATRIOT Act. It moved swiftly to the Senate for vote and approval (Wong, 42).
In a tightly controlled “presentation” as opposed to “debate,” the Senate moved the legislation known as HR 3162 quickly through the voting process, allowing for a total of less than six hours of floor time and no possibility for amendments or open discussion. Only members of the Senate who had been directly involved in the drafting or negotiation process, with the exception of Senator Feingold, were allowed to speak (Wong, 42).
The legislative process involved in the creation, revision, negotiation, and eventual passage of the USA PATRIOT Act involved some of the most partisan and difficult compromises seen in modern history. Regardless of whether the lens of history demonstrates the USA PATRIOT Act as a rushed piece of legislation that served as an extension of the Bush Administration’s quest for power in the wake of 9/11, or rather a societal compromise needed during a time of war in an effort to trade certain freedoms for the greater good of security, history will judge the actions of the 107th Congress as an example of legislative authority at its best and perhaps, worst.
- Brill, S. (2003). After: How America confronted the September 12 era. New York: Simon & Schuster.
- Electronic Frontier Foundation (EFF). (October 31, 2001). Last updated October 27, 2003. EFF Analysis of the provisions of the USA PATRIOT Act that relate to online activities. Retreived on December 14, 2008, from http://w2.eff.org/Privacy/Surveillance/Terrorism/20011031_eff_usa_patriot_analysis.php
- Feingold, R. (October 12, 2001). On Opposing the U.S.A. Patriot Act. Retreived from http://www.archipelago.org/vol6-2/feingold.htm
- H.R. 2975. Uniting and strengthening America or USA Act of 2001. Library of Congress. (10/2/2001). Retreived from http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR02975:@@@L&summ2=m&#committees
- O’Harrow, Jr. R. (October 27, 2002). Six Weeks in Autumn. Washington Post Magazine, W06. Retreived December 13, 2008 from http://www.washingtonpost.com/wp-dyn/content/article/2006/05/09/AR2006050900961.html
- Wong, K.C. (2005). The Making of the USA PATRIOT Act I: The Legislative process and dynamics. University of Wisconsin Oshkosh. Retreived from The Berkely Electronic Press (bepress) Legal Series, Paper 793. http://law.bepress.com/expresso/eps/793