Patriot Games:

Congress and the USA PATRIOT Act

Samuel Rubenfeld
PSC 122
Professor Richard Himelfarb
November 17, 2008

Word Count: 3,900

Introduction

A clear, sunny Tuesday morning in September 2001 began breezily enough. People went

off to work, dealing with the hassles of everyday life. It was supposed to be a regular day. At

8:46 a.m., however, a plane blotted out the blue sky. Hellfire burst from Lower Manhattan, from

the Pentagon and from a field in Pennsylvania. And President George W. Bush, along with the

Congress, after collecting themselves and plotting a response, sprung into action: Everyone

vowed never to allow this to happen again, by nearly any means necessary. Within 48 hours after

the attacks, the Senate approved increasing wiretap powers, and the run-up to passage of the

USA PATRIOT Act of 2001 began. The process of passing this law showed how Congress when

pushed by events, especially when coupled with an atmosphere of crisis and fear, is willing to

hastily and quickly defer its power to the executive.

The PATRIOT ACT: How It Passed

The Uniting and Strengthening America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of 2001, or USA PATRIOT Act, signed into law Oct. 26,

2001, took less than seven weeks to write, approve, pass and sign. (“President Signs”) It is a

testament to the speed at which Congress can work—when pushed. The Sept. 11 terrorist attacks

thrust Congress immediately into action: By Wednesday night, the Senate had already passed an

amendment to the appropriations bill financing the Justice Department that “makes it easier for

law enforcement to wiretap computers and combat cyber-terrorism,” according to an article in

the Sept. 14, 2001 New York Times. Lawmakers were discussing the need to consolidate the

country’s counterterrorism intelligence powers under one agency by Thursday, in addition to the

already increasing urgency to give the executive branch more wiretapping power. After passing

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the larger appropriations bill, the serious work of overhauling intelligence gathering began.

After the attacks, there was considerable political will to do something: that

appropriations bill with the wiretap amendment passed the Senate 96-0, and approved the use of

force in response to the attack by a 98-0 vote. (“Senate Approve”) Polls taken following the

attacks gave President Bush a 90 percent approval rating—a record. People polled trusted their

president and wanted him to take whatever action necessary to put down the evil that manifested

itself that fateful Tuesday, and they wanted it fast. Despite the huge political will, however, there

were immediate critics to the increase in surveillance. Civil liberties groups waited for the dust to

settle before making their voices heard. In a Sept. 15, 2001 article in the New York Times, the

American Civil Liberties Union expressed concern that Congress was moving too fast in

enacting the wiretap legislation. But every member of Congress interviewed for the story was in

lockstep: Get the measure passed immediately. The next day, Sens. Patrick Leahy (D-Vt.) and

Orrin Hatch (R-Utah) held a press conference after they met with Attorney General John

Ashcroft where they vowed to “do whatever it takes Constitutionally and otherwise” to prevent a

terrorist attack. That same day, Sept. 16, Ashcroft and FBI Director Robert Mueller jointly asked

Congress to expand their powers to fight terrorism, citing the possibility of other terrorists living

in the United States. Also on Sept. 16, Bush held a press conference, during which he referred all

questions about a legislative agenda concerning law-enforcement power to the Attorney General.

(“Today We Mourned.”) By Monday morning, the House Judiciary Committee said it cleared its

calendar to work on the counter-terrorism legislation. (“Ready to Move”)

For much of the discussion surrounding the PATRIOT Act, the executive branch was in

the driver’s seat, controlling the message and dictating the terms of the debate. The Sept. 15

Boston Herald, citing “sources,” reported that intelligence officials, worried about another attack,

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began ratcheting up their tracking of anyone with even a shade of a tie to a terrorist, even

government workers with high-level security clearances. (“Feds Concerned”) On Sunday, Sept.

16, the Bush administration blitzed the Sunday political talk shows to frame the debate in biblical

terms:

“We also have to work, though, sort of the dark side, if you will. A lot of what needs to be done
here will have to be done quietly, without any discussion, using sources and methods that are
available to our intelligence agencies…it's going to be vital for us to use any means at our
disposal, basically, to achieve our objective,” Vice President Dick Cheney said on “Meet the
Press” that Sunday.

With rhetoric like that coming from the executive branch, in addition to the carnage they’d seen

five days before, much of Congress was spooked into submission. Capitol Hill was going to give

the president all the tools he wanted, and then some, to fight Al Qaeda and win a “War on

Terror.”

By Monday, Sept. 17, six days after the attacks, Congress began holding hearings on how

to beef up intelligence gathering and increase executive power. The Senate Judiciary Committee

began discussing how to give intelligence officials more power to use wiretaps to combat

terrorists, while House Democratic leader Richard Gephardt expressed a willingness to work

with the White House on counterterrorism legislation. (“Assault On America,” Houston

Chronicle) Rep. Bob Barr (R-Ga.) wrote Ashcroft and House Judiciary Committee Chairman F.

James Sensenbrenner (R-Wisc.) a letter on Sept. 17 urging caution before enacting legislation

heightening security measures at the expense of civil liberties. (“Barr Opposes”) An article from

the Tuesday, Sept. 18, New Orleans Times-Picayune reported that Sen. Bob Graham (D-Fla.),

chairman of the Senate Intelligence Committee, called for the lifting of an executive order signed

by Gerald Ford that prohibited the assassination of world leaders by the CIA; he also suggested

the CIA loosen its ban on hiring those with “bad backgrounds.” As the Justice Department began

writing draft legislation for Congress to consider, lawmakers went on a short recess for the

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Jewish holiday of Rosh Hashanah.

Throughout the week of the attacks, and continuing thereafter, the president and his

administration played a key role in the negotiations. His bellicosity towards the Taliban meant

certain war with Afghanistan, especially after the Afghan government refused to hand over

Osama Bin Laden, the head of Al Qaida. On Sept. 17, Bush said he wanted Bin Laden “dead or

alive.” (“W Wants Osama,” Daily News) Ashcroft delivered the draft legislation on Sept. 19.

Congressional leaders said they hoped to get to the Ashcroft proposals by the following week,

citing a need to pass defense authorization and airline bailout bills during the abbreviated

session, as well as scrutinizing and fine-tuning the bill before passing it. Meanwhile, the

administration was ramping up the tension. The Justice Department changed its rules regarding

detained immigrants, doubling the time they can be held before having to decide whether to

release or charge them to 48 hours. That time constraint could be waived altogether for what the

Justice Department called “extraordinary circumstance.” More key leaders on both sides of the

political spectrum came out against the bill: Grover Norquist, a leading conservative, said

Ashcroft’s urgency in getting it passed meant the administration was hiding something. “That's

code for if anybody read it, it wouldn't pass.” (“U.S. Widens Policy”) During a major speech to a

joint session of Congress on Sept. 20, Bush proclaimed: “Whether we bring our enemies to

justice, or bring justice to our enemies, justice will be done.” (“Address to a Joint Session”) The

sense of urgency from the administration may have caused them to shoot themselves in the foot.

By Friday, Sept. 21, Congressional leadership announced it would not act on the

administration’s proposal that week, and instead would hold hearings beginning early next week.

A New York Times article from Sept. 21 reports that the House created a special intelligence

subcommittee to concentrate on terrorism and homeland security, chaired by then-Rep. Saxby

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Chambliss (R-Ga.) and that the committee will begin holding hearings the following week. A

Gannett News Service report from Sept. 21 indicated that, “in a break from tradition,” the new

select intelligence subcommittee would conduct its hearings in the open. In the Times article,

Rep. J.C. Watts (R-Okla.), chairman of the House Republican Conference, said he will “be a

tougher sale than any of my colleagues,” signaling a slight rift between the administration and its

more conservative intraparty counterparts. The Senate also began to act by Sept. 21, with

Minority Leader Sen. Trent Lott (R-Miss.) expecting quick action, and Leahy, the Senate

Judiciary Committee chairman, saying he drew up his own list of priorities, including toughening

money-laundering laws and authorizing “roving wiretaps” for surveillance of suspected

terrorists. Senate Intelligence Committee Chairman Bob Graham (D-Fla.), along with Sen.

Dianne Feinstein (D-Calif.), introduced the first two bills responding to the administration’s

requests. The first would create a White House office to coordinate the 40 agencies that combat

terrorism, while the other would allow the government to obtain wiretaps for any phone used by

a suspected terrorist. The second bill would also eliminate the need to renew wiretap orders for

suspected terrorists after they expired. (“Senators Introduce”) Despite passing $55 billion in

emergency funding in response to the attacks within a few days, it was taking Congress longer to

become organized enough to pass stronger anti-terror measures.

Nearly two weeks after the attacks, Congress began holding hearings on whether to

expand the power of federal law enforcement to combat terrorism. On Monday, Sept. 24, John

Ashcroft testified to the House Judiciary Committee, telling the committee the “fight against

terrorism is now the highest priority of the Department of Justice” and delivering a broad outline

of what he called the administration’s “modest” proposal to combat terrorism. But the

committee’s minority members were not entirely happy with the presentation: Ranking member

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Rep. John Conyers (D-Mich.) said he was “deeply troubled” by the wiretap provisions but that

he still wanted the process to go forward. Rep. Barney Frank worried about the sharing of

intelligence, saying it reminded him of the “savage campaign of defamation waged by J. Edgar

Hoover as head of the FBI against Dr. Martin Luther King.” Barr, considered one of the moset

conservative members in all of Congress, asked why it had to be rushed through. House markup

on the draft legislation was expected to begin the next day, but after protests during hearings,

they tabled it for at least a week. (“Lawmakers Tap Brakes”) That same day, the administration’s

proposals hit a snag during a hearing with Justice Department subordinates not just with Senate

Democrats but also with at least one Senate Republican, Sen. Mike DeWine (R-Ohio), according

to a Sept. 25 article in the Washington Post, where he questioned the constitutionality of the

provision lowering the requirement to obtain a warrant for wiretapping. Congress was not ready

to hand over such power to the executive branch without a fight, even if it was a small one.

After his contentious hearing at the House, Ashcroft spent Tuesday, Sept. 25 testifying to

the Senate Judiciary Committee. He spoke in a slightly more mollifying tone, emphasizing the

constitutionality of the administration’s proposal. “I can assure the committee and the American

people we are conducting this effort with a total commitment to protect the rights, the

constitutional rights and the privacy of all Americans,” he said in his opening statement. He also

said, however, “the American people don't have the luxury of unlimited time” in figuring out

how to legally fight terror, a broadside against the House for tabling its vote until the following

week. Though more genial in tone, the Senate did question major parts of the draft legislation. Its

largest problem was with the immigration provisions, namely that the federal government could

hold detainees indefinitely without charging them, so long as the Attorney General said they

were a threat. Ashcroft softened the bellicose language of the draft legislation on the detainee

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issue somewhat during the hearing, saying it needed to be clarified. Members of both parties

proposed a sunset provision for the most controversial elements of the bill, but Ashcroft opposed

it. (“Senate Judiciary Questions”) Day by day, the threads of consensus began to weave

themselves together.

The week of hearings on Capitol Hill allowed Congress to reassert its authority in

policymaking, even after the Sept. 11 attacks. “At least for now, the House and Senate Judiciary

committees—not the Bush administration or congressional leadership—are in control,” reported

CQ Weekly in its Sept. 28, 2001 issue. By forcing the Attorney General to testify publicly on the

issues found in its proposal, it exposed the differences in approach between the House and

Senate, with the upper chamber being more willing to defer power to the executive. It also

provided an opening for Bush to take the moral high ground while Congress battled over the

legislation: he thanked Central Intelligence Agency employees for their work on Sept. 26, saying

he intends to get them everything they need to prosecute the new “War on Terror.” (“President

Thanks CIA”) The fissures, at this point, however, didn’t seem to concern the members: The

chambers were willing to work together, and to work with the White House, but they needed to

finish their own work first.

Legislation concerning a major overhaul of the Bush administration’s anti-terror

initiatives still did not make it to the president’s desk by the beginning of October, and the

administration became impatient. Bush asked Congress for “new law enforcement authority, to

better track the communications of terrorists, and to detain suspected terrorists until the moment

they are deported” in his weekly radio address, aired Saturday, Sept. 29. (“Radio Address”)

Ashcroft spent the last day of September making the rounds on Sunday talk shows saying Al

Qaida was still plotting to attack the U.S. while Congress was sitting on its hands with the

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legislation, according to a story in the Oct. 1, 2001 New York Times. The Times story details

many legislative efforts of years past—most of which died in Congress or were never

implemented. But by the afternoon of Monday, Oct. 1, the House Judiciary Committee

announced it had come to an agreement on compromise legislation, and that it would introduce

the bill Tuesday, for markup to begin the following day. The bill, dubbed the “Patriot Act,”

includes much of what Ashcroft asked for in his initial proposal, but it significantly weakened or

outright eliminated some of the more controversial issues, such as detainees only being able to be

held for seven days, and calling for a two-year sunset provision for the electronic surveillance.

(“House Bill Expand”) Still, Barr did not like it, saying he still harbored concerns with the

compromise bill. (“Negotiators Back”) The House Judiciary Committee approved it Wednesday

night, Oct. 3, by a 36-0 unanimous vote, with markup amendments that included enough

concessions so Barr could to support it. (“Committee Passes”) The seeds planted by the

administration, after three weeks of threats and negotiation, finally were germinating.

While the House version of the bill was coming together, the Senate still squabbled over

the proposed legislation. Sen. Russ Feingold (D-Wisc.), chairman of the Subcommittee on the

Constitution, Federalism and Property Rights, held a hearing Wednesday, Oct. 3, on the

constitutionality of the wiretapping provisions. Norquist, president of Americans for Growth,

implored lawmakers to read the entire bill before passing it, as he said many provisions may in

fact be unconstitutional. Morton Halperin, a civil liberties advocate, who also testified but from a

unique perspective: he was wiretapped during the 1960s and early 1970s. “Reading the

government logs of your private phone calls for an extended period does bring sharply into focus

the danger of abuse and value of privacy,” Halperin said. (“Hill Due”) Also, negotiations

between the White House and the Senate broke down Tuesday night, Oct. 2, after Senate

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Democrats accused the White House and Ashcroft of sending mixed messages and reneging on

agreements; Ashcroft accused the Senate Democrats of stonewalling on badly needed legislation.

(“Bill Hits Snag”) Senate Republicans thought the sunset provisions proposed by the Democrats,

also found in the House bill, would handcuff investigators. (“Antiterror Bill Faces Hurdle”) By

Wednesday, however, the Senate reached an agreement with the White House, but declined to

reveal the details of the agreement. (“Senators Agree”) Majority Leader Sen. Tom Daschle (D-

S.D.) said that when a formal agreement was announced, the bill would go straight to the Senate

floor for a full vote, bypassing the Judiciary Committee. (“Panel Approves Bill”)

Both houses of Congress now had their respective bills to pass by the end of the first

week of October, and said they would come to a vote the following week. But there were

significant substantive differences between the bills: The Senate’s version of the bill gave much

more authority to law enforcement officials than the House version did. The House version had a

two-year sunset provision for wiretap powers; the Senate version did not. The House bill

required, that to charge someone with harboring terrorism, the person must have committed or

imminently committing one; the Senate bill simply required “reasonable grounds to believe” the

person was about to commit a terrorist act. (“Terror Laws Near Votes”) Both bills still, however,

contained many of the demands from the administration and from the Justice Department.

Anticipation ran high over the weekend, and into the next week: was the Congress actually going

to pass it, or would it balk?

Over the weekend, President Bush announced that the U.S. began bombing Al Qaeda

training camps in Afghanistan, exercising the use of force authorization delivered by Congress

immediately following the attacks. Bush said he gave the Taliban an ultimatum to deliver Bin

Laden; they failed to give him up. He emphasized the battle being broader: “In this conflict, there

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is no neutral ground. If any government sponsors the outlaws and killers of innocents, they have

become outlaws and murderers, themselves. And they will take that lonely path at their own

peril.” (“Address to The Nation”) The action put more emphasis on the events up on Capitol Hill.

With the White House announcing it was beginning a war, the Capitol still worked on

delivering Bush the legislation he wanted. In a textbook example of how little power Senate

leadership has over its chamber, Daschle couldn’t muscle the “Patriot” bill through without a

fight. On Tuesday night, Oct. 9, Feingold refused to let the bill reach a vote without debate or the

chance to propose an amendment. He proposed a battery of changes to the compromise bill

concerning secret searches, wiretapping telephones, curtailing FBI access to American’s personal

records and clarifying the federal government’s ability to tap computers. (“Feingold Blocks”)

Feingold’s proposals caused the Senate to delay the vote for another week. The House, however,

had its own problems. It was involved in a tug-of-war between White House loyalists who want

the House to abandon the unanimously-approved Judiciary Committee measure and those who

harbor philosophical misgivings with the Senate version of the bill. (“Defiant House Opposes”)

The White House pushed the Senate bill, which the chamber crafted in close consultation with

the administration, and hewed much more closely to its interests. (“Powers Hit Snag”). The

White House commended both houses of Congress for passing their respective versions of the

bill, calling them “virtually identical” and asking Congress to quickly get the bill on the

president’s desk. (“President Commends House”)

By the end of a contentious week, both houses passed “Patriot” bills, but there was still

much work to be done. On Thursday night Oct. 11, the Senate passed its version of the bill 96-1,

with Feingold the only senator to vote against it, and with Leahy voting for it despite

“misgivings.” (“Senate Passes Expansion”) During a primetime press conference Thursday night,

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Bush said information sharing between the CIA and the FBI was already “seamless.” (“President

Holds Press Conference”) In the House, the bill passed 337-79 on Friday, Oct. 12, but what was

passed was starkly different than the Judiciary Committee compromise. The House adopted the

Senate version, but added a five-year expiration to the most controversial measures of the bill

and it dropped the money-laundering provision from the bill. (The House was debating the issue

as part of separate legislation.) However, “We will not support a counterterrorism bill that does

not have money-laundering provisions in it,” Daschle said. (“House Passes”) The House-passed

bill went to the Senate for final conference approval, setting the stage for the bill to reach Bush’s

desk the following week. In just over a month, Congress was almost ready to send the largest

expansion of executive power in decades to the president’s desk for signature.

The only thing holding the bill up: reconciliation between the two houses of Congress,

prevented initially by an anthrax scare. A burgeoning scandal that had already engulfed titans of

the news media, the Senate became the next victim of a bioterrorist attack on Monday, Oct. 15,

when Daschle’s office received a letter containing white powder that preliminary tests identified

as anthrax. Daschle’s personal office was closed and 40 employees were tested for exposure to

the bacteria. Despite the incident, Daschle insisted he would continue to try and get the bill

through the senate by the end of the week. (“Anthrax Incident May Slow”). The final tests came

back positive, and it caused both the Senate and the House to close all six of its buildings for

further testing. The House cancelled all business until the following Tuesday, while the Senate

continued its business despite its offices being shut. (“Anthrax Threat”) By Thursday, Oct. 18,

the “Patriot Bill” cleared its last hurdle before passage, after House negotiators agreed to put the

money-laundering provision back onto the bill. Negotiators had already agreed the day before to

a four-year sunset on the secret searches, electronic surveillance and wiretapping, the most

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controversial parts of the legislation. The White House hailed the pre-conferenced version of the

bill, and eagerly awaited its passage the following week. (“Senators Say Finished”).

With the house shuttered amid the anthrax scare, the compromise bill sat dormant for

almost a week. But after the house reopened, the chambers began voting on Wednesday, Oct. 24.

The House passed the final version of the bill 357-66. The senate passed it the next day, 98-1,

with Feingold, again, the only one opposing. Sen. Mary Landrieu (D-La.) did not vote. The bill,

after all the cantankerous debate, threats, negotiation and compromise, was ready for the

president’s signature. Bush signed the USA PATRIOT Act on Friday, Oct. 26, hailing the law as

“essential not only to pursuing and punishing terrorists, but also preventing more atrocities in the

hands of the evil ones.” (“President Signs”)

Conclusion

The seven-week sprint that led to the PATRIOT Act’s passage gave the president and law

enforcement agencies unconstitutional power to potentially exact revenge on enemies political

and personal, as report after report from Congress, and from the news media, showed the

administration did after the law’s signing. In passing the law, Congress lost the power of

oversight, and the Bush administration abused it far more than even the most critical member of

Congress could have anticipated. The Supreme Court has ruled multiple parts of the law

unconstitutional, including ruling the indefinite detention provision out of constitutional bounds

three times. The rushed passage of such consequential legislation should serve as a lesson for

future Congresses. By getting caught up in the post-Sept. 11 fervor to find someone to hold

accountable for the attacks, Congress abdicated its responsibility as a deliberative body.

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