Photos: The UpTake

Minnesotans disgusted by insipid Twins-Yankees TV commentators might find comic relief in civil libertarians’ online kibbitzing about U.S. Sens. Al Franken and Amy Klobuchar, who last week voted to renew the Patriot Act without reforms in the Senate Judiciary Committee. In so doing, Minnesota’s senators committed the legislative equivalent of calling a plainly fair ball foul or overrunning third base. 

The Electronic Frontier Foundation (EFF) singles out Franken for forgetting the very Fourth Amendment to the U.S. Constitution with which he so recently bludgeoned an Obama Administration witness before the same committee:

A special disappointment at yesterday’s hearing was freshman Senator Al Franken’s vote for the bill, which amongst other things renewed PATRIOT’s “roving” “John Doe” wiretap authority allowing the government to get a wiretapping order that doesn’t name the wiretapping target or specify the phone lines and email accounts to be wiretapped. Just two weeks ago, Senator Franken was lecturing a Justice Department official on how the Fourth Amendment requires that search warrants specify with particularity the persons and places to be searched. He was right, then; he was wrong, yesterday.

EFF has Klobuchar, a co-sponsor of the Patriot Act–renewal bill, delivering an unwitting punchline in the tragicomic defeat of new limits to the far-reaching law:

Another sad but humorous moment of disappointment came from Senator Klobuchar, who opposed Senator Durbin’s amendment to ensure that the FBI only use National Security Letters to obtain records related to a spy or terrorist. Thinking that she was reading the text of the bill that she was about to vote for, Klobuchar recited instead Senator Durbin’s proposal to defend the reasonableness of the NSL standard in the bill. In other words … Senator Klobuchar praised the NSL standard in Durbin’s amendment immediately before she voted to help kill it.

Irregular Times piles on: “Klobuchar … does not keep her mouth shut, even when to do so might be in her best interest. … Nobody would have known that she didn’t understand the legislation in front of her if she hadn’t decided, seemingly on the spur of the moment, to speak up.”

This is Irregular Times’ transcript of Klobuchar’s unwarranted speechifying (watch video here, starting at 95:00):

KLOBUCHAR: Yeah, thank you, um, Mr. Chairman, and I, I agree with you Mr. Chairman, and, uh, Senator Sessions, in opposing the amendment. And I would just point to the actual language in here, which is, uh it’s not like this is some pie in the sky standard here. I mean, it specifically says that there has to be, for this letter to issue, “reasonable grounds to believe that the information sought is relevant to an authorized national security investigation provided that such an investigation of the United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution and pertain to a foreign power or an agent of a foreign power, is relevant to the activities of a suspected agent of a foreign power who is subject of such authorized investigation, or pertains to an individual in contact with, or known to, a suspected agent of a foreign power.”

So I just, for anyone listening to this, it is not like there is no standard! There is a standard in place here.

SEN. JEFF SESSIONS: That’s the standard that is in the bill now?

KLOBUCHAR: [nod and smile]

SEN. DICK DURBIN: Senator, that’s the standard of the amendment. It’s not in the bill now.

SEN. PATRICK LEAHY: Clerk will call the roll.

DURBIN: Mr. Chairman, can I have a moment?

LEAHY: Senator Durbin.

DURBIN: I’d like to make that point to Senator Klobuchar!

LEAHY: Oh, I’d like to make it very clear, I’m not going to cut off anybody who wants to, obviously, I…

DURBIN: Thank you, Mr. Chairman. It’s rare we get a chance to talk about issues of this gravity, and I think we ought to take a few moments to do it. And I would say to Senator Klobuchar, you just read my amendment, and I think it’s critically important that you understand what we’re establishing here.

Wisconsin is the only other state with both its senators on the Judiciary Committee. That state’s Sen. Russ Feingold, a leading Patriot Act reformer, took to the Daily Kos web pages with a post titled “It’s Not the Prosecutors’ Committee, It’s the Judiciary Committee” after the committee voted down his alternative Justice Act.

Feingold is too polite to call out his neighbor-state colleagues in his blog post.

Sen. Patrick Leahy. Photo: WDCpix

Republicans and Democrats have been sniping about the USA Patriot Act ever since Congress passed the law in the wake of the September 11 terrorist attacks to try to forestall another such disaster. But now, it’s the Democrats who are sniping among themselves about it. While some lawmakers, like Sens. Russ Feingold and Dick Durbin, have insisted that Congress must amend the law to rein in the FBI’s powers to snoop into innocent private activities, other Democratic lawmakers, such as Senators Dianne Feinstein and Patrick Leahy, have resisted significant reforms.

Three provisions of the law will expire by the end of this year if they’re not renewed, and have been the subject of recent hearings. Those are: the “roving wiretap” provision, which allows the government to tap  phones and other electronic devices used by any person suspected of involvement in terrorism; section 215 of the Patriot Act, which allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation; and the so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.

The other controversial provisions include the FBI’s authority to issue National Security Letters, or NSLs, which seek a broad range of information from businesses about their customers but do not require a warrant or any other court order; and the “sneak and peak law”, which allows the FBI to search a suspect’s home without informing the target that they’ve been searched.

Civil liberties advocates insist these provisions are all too broad as currently written, and allow the FBI to abuse its authority to conduct wide-scale “data mining” of the general population, searching innocent people’s records and personal information while the government tries to root out wrongdoing. Because in many cases it’s not clear how the government is using its broad authority and who gets access to the information, privacy advocates worry that the government could retain such information and use it in ways unconnected to terrorism investigations.

A 2007 report from the FBI Inspector General concluded that the FBI had issued almost 150,000 NSL requests between 2003 and 2005, often collecting information about people not even suspected of having done anything illegal. The Inspector General also found that the FBI’s record-keeping was so poor that it often didn’t know how many letters it has issued, and requested information it wasn’t entitled to receive.

Advocates worry that many sections of the Patriot Act allow similar abuses. “The concern is that the changes the Patriot Act made were such that so long as the FBI agent certifies that the information they’re seeking is relevant to a terror investigation, they can get it,” explained Farhana Khera, Executive Director of Muslim Advocates, which recently sued the government for more information about FBI surveillance practices. “We argue that’s way too broad. It should be tied to a suspected terrorist or terrorist activity.” The FBI’s current authority “has unleashed concerns about the FBI getting access to data on literally millions and millions of Americans,” she said.

Advocates for Muslim-Americans also worry that the laws are being used to target and harass law-abiding American muslims, landing them on no-fly lists, preventing them from getting hired for federal jobs, or deterring them from contributing to legal charitable organizations that assist needy Muslims in other countries.

To address these problems, in mid-September, Feingold and Durbin, both of whom have long expressed concerns about the Patriot Act, introduced the JUSTICE Act (Judiciously Using Surveillance Tools In Counterterrorism Efforts), which would renew section 215 and the roving wiretap provisions, but would require the government to provide more justification for using them, and to specify more clearly the targets of their investigation.

The bill would also rein in the FBI’s authority to issue National Security Letters by requiring the government to specify what it’s looking for and how the information is relevant to an ongoing national security investigation. Meanwhile, it would repeal the part of the FISA Amendments Act that immunized telecommunications companies such as AT&T that assisted the government in its warrantless wiretapping program.

But a week later, to the dismay of many civil libertarians, Sen. Leahy introduced the USA Patriot and Sunset Extension Act. Cosponsored by Sens. Benjamin Cardin (D-Md.) and Ted Kaufman (D-Del.), it would extend the expiring provisions with only minor modifications, and would leave the “lone wolf” and “roving wiretap” provisions intact. It also would not include any reforms to the FISA Amendments Act.

By the time of the Senate markup session last week, Sen. Leahy, the Judiciary Committee Chairman, had produced a substitute version of his bill, co-sponsored by Sen. Dianne Feinstein (D-Calif.), who chairs the Intelligence subcommittee. This bill became the basis for the markup, effectively destroying the chances for adoption of the JUSTICE bill, although pieces of it could still be introduced as amendments.

Civil liberties advocates quickly expressed their disappointment. The American Civil Liberties Union called it “a watered-down version” of the original Leahy bill. Kevin Bankston of Electronic Frontier Foundation similarly described it as having “even fewer PATRIOT reforms than the original Leahy bill.”  Although Feingold and Durbin offered amendments, the only one that succeeded was one amending the “sneak and peak” provision. The amendment would require the government to notify the subject of a search within seven days, instead of 30, as the law stands now. An amendment offered by Senator Durbin to narrow the broad Section 215 powers, which now allows the government to gain access to “any tangible thing,” failed.

Even Sen. Al Franken, who at the recent Senate Judiciary Committee hearing took the time to read the Fourth Amendment to the U.S. Constitution to Justice Department official David Kris, voted to support the Leahy-Feinstein substitute bill, and against the Durbin and Feingold amendments.

Feingold has repeatedly expressed concern that the government is not providing enough information for the public to know how the Patriot Act is being used.

“I remain concerned that critical information about the implementation of the Patriot Act remains classified,” said Feingold at a recent hearing, noting that he believes that much of that classified information “would have a significant impact on the debate.” Although the Justice Department recently acknowledged that the “lone wolf” authority has never been used, said Feingold, “there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know.”

Some representatives in the House, where they’re also debating changes to the Patriot Act and will eventually put forward their own bill, feel the same way. Earlier this week, Reps. John Conyers (D-Mich.), Jerrold Nadler (D-NY), and Bobby Scott (D-Va.) wrote a letter to Attorney General Eric Holder asking for more information about how Section 215 orders have been used to help inform the House debate. (Eventually, the House and Senate bills to amend the Patriot Act will have to be reconciled before they go to the President for his signature.)

Although Feinstein has cited classified information as her reason for supporting the re-authorization of section 215 as is, Feingold disagrees. The Feingold amendment would have limited what kinds of records could be obtained under section 215, and required that the government show that those records are related either to terrorist activities, or to people in contact with a terrorist.

Interestingly, notes Michelle Richardson, legislative consultant to the ACLU, during the Patriot Act reauthorization process in 2005, “Democrats and Republicans supported amendments to section 215 to limit it to terrorist activities,” she said. “But now they don’t.”

The problem with reauthorizing many of these provisions, says Richardson, is that “we don’t know what information they’re getting, how much, and who has access,” she said. “But we believe that anytime you get the information, it’s a violation. These are principles over 200 years old in this country, that government should not be getting this information about you unless they have reason to believe you’ve done something wrong.”

That principle is increasingly being discarded. Attorney General Guidelines issued at the end of the Bush administration, for example, eliminated the requirement that the FBI must have reason to believe the target of an investigation has committed a crime before initiating that investigation.

“Who knows if the information comes back to haunt you,” said Richardson. “If you apply for federal student aid, for a federal job, or end up on a no-fly list. We don’t know who has access to the information, and where it’s supposed to go. That’s not how things are supposed to work in this country.”

On Thursday, the markup session will continue in the Senate Judiciary Committee, as specifics on the bill get hammered out. Much of the critical information necessary to determine how it’s working, though, will remain secret.

The U.S. Senate took an hour out of its time Thursday to honor former Sen. Norm Coleman. Here are video clips with the complete tributes to Coleman from 10 senators (seven of Coleman’s fellow Republicans and three Democrats, including Amy Klobuchar), as well as transcribed highlights of their remarks — with particular attention to what they had to say about their former colleague’s future.

In the order in which they spoke, listed below are the 10 senators who gave Senate-floor testimonials to Norm Coleman on Thursday. After each name is an text excerpt from and full video of the senator’s speech. Click on the senator’s name to see the full transcription of his or her remarks.

Sen. Mitch McConnell (R-Ky.):

Today we honor our colleague and friend for that long career that we hope is far from over. And we punctuate an incredibly hard fought campaign that some people thought might never end. In the end, it didn’t turn out the way many of us had hoped it would. … And I have no doubt that this is not the last we will hear from Norm Coleman.

Sen. Dick Durbin (D-Ill.):

I enjoyed serving with Norm … I wish Senator Coleman the very best in his future endeavors …

Sen. Lamar Alexander (R-Tenn.):

If Norm Coleman could have found some way to make the 2000 Presidential election Bush v. Gore v. Coleman, Norm would have been a participant in every single one of the most spectacular political races of the last decade. … He proved to be determined and courageous and, in the Minnesota tradition, a happy warrior in attempting to make sure that every Minnesota vote counted in the race, which was decided by just a few votes.

Sen. Mel Martinez (R-Fla.):

Norm and Laurie are my friends. I wish them the very best as they go forward in their lives. I know they will find other opportunities to be of service to the people of Minnesota and to the people of the United States, and I might daresay also to the people of Florida because Norm has a great affection for my State, where he has spent a lot of his time.

Sen. Robert Bennett (R-Utah):

I simply add my voice of gratitude for the opportunity of serving with Norm Coleman and my best wishes for him in his future activities. He is a young and vigorous enough man that I think we will hear far more from him in the years ahead.

Sen. Saxby Chambliss (R-Ga.):

So to Norm Coleman I simply say we will miss you in the Senate. We are not going to let him go away, though. I still talk to him on a regular basis and will continue to do so and will seek his advice …

Sen. Susan Collins (R-Me.):

I had the opportunity to talk with Norm right after the supreme court in Minnesota ruled against him. I was struck, once again, by his determination to do what he felt was best for his state, even though it was not best for him. I was also touched by his commitment, once again, to his constituents and to moving on and ensuring that they had two Senators representing them.

Sen. Harry Reid (D-Nev.):

He was always very courteous and always a gentleman with me. I never heard him say a negative word about me. I cannot ever recall saying anything negative about him. … [H]e is a relatively young man, and I am sure with his educational background and his notoriety in Minnesota, he will have a bright future.

Sen. Amy Klobuchar (D-Minn.):

Second only to his family has been his dedication to public service. It has literally defined his adult life. Maybe it was sheer destiny that he found his way to the Senate. After all, he is a graduate of James Madison High School in Brooklyn, which is also the alma mater of two of our Senate colleagues — Chuck Schumer and Bernie Sanders. Norm hit the ground running in politics, and he has not stopped.

Sen. John Thune (R-S.D.):

If he were here, I think he would tell you that in coming to the Senate–and I would tell you the same thing — he can now look back on some of the things he was involved in getting done, such as being involved in the big debates over the confirmation of Chief Justice John Roberts or Justice Sam Alito — these were big debates in which we were all involved in seeing good people put on the Supreme Court of this country.

Dick Durbin is the senior senator from Illinois and is currently seeking a third term in office. He’s being challenged by Republican Steve Sauerberg, but polls have consistently shown the incumbent with a commanding lead. Durbin was an early supporter of Barack Obama’s presidential campaign and introduced him at the Democratic National Convention in August. Today he was in Minnesota stumping for his fellow Illinois legislator. I spoke to him by phone. What follows is an edited transcript of our conversation.

Minnesota Independent: You are in the midst of a re-election campaign, so what are you doing in Minnesota?

Dick Durbin: I try to sneak away a few days a week to help Barack Obama. I was part of the group that talked him into this race and I’ve kept my word that I’d stand by him all the way. I’m trying to have that dual responsibility of running for re-election in my state and helping him win.

MI: What’s your big picture assessment of the presidential race at this time?

DD: I think there was a real shift in this election campaign just within the last two or three weeks. When the economy became such a dominant issue, it really pushed aside a lot of the minor and superficial things that had been talked about. We spent two or three days debating what Barack meant when he said “lipstick on a pig.” I don’t think the American people would tolerate that conversation in light of the serious economic problems we face today.

MI: In recent days we’ve heard a lot about Bill Ayers from the McCain campaign. What do you make of those attacks?

DD: It doesn’t have legs. What it boils down to is Bill Ayers’ wrongdoing occurred when Barack Obama was 8 years old and was a kid in grade school. To any way associate Barack with Ayers, besides a few meetings on a charitable board, is an exaggeration. As Rahm Emmanuel said recently, if you’re going to hold Barack Obama accountable for what happened when he was 8 years old, you should hold Sen. McCain accountable for what happened when he was 58 years old, which happens to be the Keating Five scandal.

MI: You’ve had similar attacks waged against you by your Republican opponent, accusing you of actions that “embolden the enemy.” What impact do you think those have had on your own contest?

DD: I was kind of surprised that my opponent went to that level, first saying that he thought I was unpatriotic and then saying that somehow I endangered our troops. We had a debate over it last night in Galesburg. I said to him, I just don’t think this is gonna work, doctor. I don’t think the American people are going to buy this. They’re more interested in what we’re going to do to end this war and bring our troops home safely. They’re more interested in what we’re going to do to get this economy back on its feet. This kind of name calling I think is for the bottom feeders of the American political scene.

MI: You’ve been a frequent critic of Guantanamo Bay. We’ve heard very little about that facility in the presidential campaign. If Obama is elected, what do you expect to happen with Guantanamo Bay?

DD: I expect Guantanamo to be closed. I think Barack Obama understands, as I do, that it has become a blight on America’s image around the world. We need to bring those prisoners to justice if they have committed crimes or in any way endanger our nation. We need to be honest. If we’ve held them for years without any evidence of wrongdoing they need to be released.

MI: Do you have in mind a time frame for how long it would take to shut that facility down after Jan. 20?

DD: I don’t have one. But I can tell you that even President Bush was talking about closing Guantanamo over a year ago. I think it’s long overdue.

MI: You supported the $700 billion bailout package. Why?

DD: I’m afraid it was the only game in town. I hate to say that. This mess that we have with our economy was a creation of the deregulators, high priest Phil Gramm and his acolyte John McCain. This notion that if we just stepped aside dynamic capitalism would create wealth and growth — well, we’re paying our comeuppance, and sadly a lot of people are suffering. People have lost their savings. Investors are getting the bad news on a regular basis. We’ve got to have central regulation. We can’t exempt any portion of our economy from the kind of oversight that protects basic American families.

MI: This bailout package was intended to calm the financial sector. Clearly that has not happened. Why do you think that is?

DD: We hoped that the passage of the legislation would be a confidence builder. It didn’t work. Perhaps when we start actually buying these illiquid assets and strengthening some of the institutions it will work. But there’s a chance as well that it won’t work at all. Our alternative was to do nothing. I just couldn’t bring myself to reach that point. Neither could Barack.

MI: Race — what role do you think it is playing in this election so far?

DD: It would be naive to believe that race is not a factor in this election. It is. There will be people who will vote based on race. I’ve run into some who’ve told me in Chicago that they’re good strong Democrats, but they’re still struggling with the notion of voting for a black man. They’ve been candid with me about it. The thing that I think has happened is over time people have come to know Barack Obama. They’ve watched and seen him during the course of his campaign. It’s been 16 years or so since he published his autobiography. Obama’s story is out there in detail for America. There is still a chasm between races in our country. Most of us don’t feel that we completely understand black families because we don’t associate as much as we should. But I think at the end of this campaign there will be a much smaller percentage of voters that are troubled by that. I think that Barack is going to overcome it.