Three key provisions of the USA Patriot Act, which give the Trump administration broad surveillance powers, are set to expire on March 15 unless Congress votes to reauthorize them. Sen. Bernie Sanders (I-Vt.) is the only leading democratic presidential candidate in Congress who is publicly opposing them.
“I voted against the Patriot Act in 2001, 2006, 2011 and 2015. I strongly oppose its reauthorization next month,” he tweeted on February 11. “I believe that in a democratic and constitutional form of government, we cannot sacrifice the civil liberties that make us a free country.”
One provision is section 215, the bulk metadata collection program exposed by Edward Snowden. This provision underwent modest post-Snowden reforms in 2015, but its essence remains largely intact in the call detail records (CDR) program. The program authorizes the NSA to seize call records of people deemed a target — and the people those targets communicate with. In 2017 and 2018, this provision allowed the government to collect more than 968 million records. The government recently shut down the CDR program, admitting to its overreach, but the legal authority to reinstate it at any time remains.
“This CDR program was shuttered by the government because of massive over-collection of millions of Americans’ records,” Sandra Fulton, government relations director for Free Press, tells In These Times. “At this point, eliminating the CDR program is low-hanging fruit for any reform that is at all acceptable.” According to Fulton, even if the CDR program is currently shuttered, keeping it on the books is a problem, because the government could reactivate it at any time. “If we find a program that’s being an abuse, the government doesn’t just get to keep it,” she says.
The other two senators among the leading Demoratic candidates, Elizabeth Warren (D-Mass.) and Amy Klobuchar (D-Minn.), have not made similar statements publicly opposing the reauthorization, and neither returned In These Times’ request for comment.
Sen. Klobuchar voted to reauthorize the Patriot Act in 2011, while Sanders did not (Warren was not yet in the Senate). Both Klobuchar and Warren voted in favor of the USA Freedom Act in 2015, which imposed limited reforms on the Patriot Act; Sanders voted no, citing the inadequacy of the reforms. Warren did, however, vote “no” on 2018 on a bill to extend the NSA’s powers to carry out warrantless surveillance for another six years, as did Sanders. Klobuchar voted yes.
Speaking publicly against the Patriot Act could have a significant impact at a time Democrats are still acquiescing to a George W. Bush-era policy that has been in place for nearly 20 years. Last November, Democrats voted overwhelmingly for a measure granting a three-month extension of the three Patriot Act provisions, included in a House resolution to prevent a government shutdown, infuriating civil rights activists. Only 10 Democrats in the House voted against the reauthorization, among them Reps. Alexandria Ocasio-Cortez (N.Y.), Ilhan Omar (Minn.), Ayanna Pressley (Mass.) and Rashida Tlaib (Mich.), known as “the squad.” But Congressional Progressive Caucus (CPC) co-chairs Reps. Pramila Jayapal (D-Wash.) and Mark Pocan (D-Wisc.), and vice chairs, Reps. Ro Khanna (Calif.) and Barbara Lee (Calif.), all voted for it. (Neither Sanders, Warren nor Klobuchar were present for the Senate vote.)
As Sam Adler-Bell previously reported, the CPC said the extension was necessary to negotiate for better reforms, but those progressives who voted yes caught considerable heat from activists. “While we would oppose these authorities under any administration, history demonstrates that mass surveillance disproportionately impacts communities of color, immigrants, and other marginalized groups that Donald Trump is actively targeting,” the activist organization Demand Progress said in a statement.
Likely in response to criticism, the CPC now says it doesn’t plan to acquiesce to Bush-era spy powers so easily in mid-March.
“For far too long, Congress has permitted blatant, unconstitutional violations of Americans’ Fourth Amendment rights under the PATRIOT Act,” co-chairs Jayapal and Pocan told In These Times via email. “Any long-term reauthorization of this legislation must contain meaningful and substantial reforms to these legal authorities, as proposed in the Safeguarding Americans’ Private Records Act (SAPRA), in order to secure our support.”
Introduced by Sens. Ron Wyden (D – Ore.) and Steve Daines (R – Mont.) and Reps. Zoe Lofgren (D – Calif.), Warren Davidson (R – Ohio), and Pramila Jayapal (D – Wash.), SAPRA, introduced in the House by on January 24 by Rep. Zoe Lofgren (D-Calif.), would rescind authority for the CDR program. It has attracted support from a coalition of civil rights and privacy organizations, among them Color Of Change, Committee of Concerned Scientists and Indivisible.
However, the organizations note that the reform has shortcomings. In a letter, the coalition said that SAPRA “does not, for instance, prohibit ‘backdoor searches’ under Section 702, a loophole that poses a dangerous threat to Americans’ privacy by allowing the government to search through communications collected under Section 702 of FISA seeking information about Americans without a warrant. Further, it reauthorizes the so-called ‘lone wolf’ authority, which has never been used and should be repealed just like the Section 215 CDR program.” This lone wolf authority allows the government to wiretap someone who is not a “U.S. person” and not a part of a “terrorist” organization – but deemed by the United States to be helping international “terrorism” (it is believed that this provision has never been used).
Nonetheless, David Segal, the executive director of Demand Progress, tells In These Times that “SAPRA is the only genuine reform bill in play.”
Whatever this bill’s shortcomings, it’s almost certain to face opposition not only from the Trump administration, but from the Democratic Party leadership. House Speaker Nancy Pelosi (D-Calif.) played a significant role in November in pushing Democrats to endorse a reauthorization of the Patriot Act — with no reforms — by slipping it into the funding bill. And impeachment manager Rep. Adam Schiff (D-Calif.), who boosted his public profile by emphatically declaring that President Trump is “dangerous to this country,” was among the “yes” votes for full reauthorization of that president’s spy powers.
There is still significant bipartisan support for the CDR program, bringing significant risk that Democrats could cut a deal for reforms with less teeth — and more loopholes — than SAPRA.
A Sanders spokesperson noted to In These Times that the senator has been a supporter of Wyden’s efforts to reform the Patriot Act and cosponsored his bipartisan USA RIGHTS Act. The spokesperson indicated that Sanders opposes the current iteration of the Patriot Act but would likely support Wyden’s SAPRA legislation in the Senate, as it “goes much further to protect privacy and civil liberties than a sunset of Section 215.”
By coming out now against the mass surveillance powers, Sanders appears to be signaling to the CPC that it should find its backbone on this issue. And those who stay silent are implicitly encouraging the opposite.
This piece has been updated to include remarks from a spokesperson for Sanders that was sent following publication.
Sarah Lazare is the editor of Workday Magazine and a contributing editor for In These Times. She tweets at @sarahlazare.