Even as US antiterror officials warned Thursday of the growing threat of homegrown terrorism, the House leadership scrambled for votes to extend critical provisions of the 10-year-old Patriot Act, including a section that allows the FBI to spy on US-born terror suspects with no known ties to international terror organizations.
Concerns about civil liberty infractions are shared by incoming tea party-backed Republicans and by Democrats seeing an opportunity to derail a law that's unpopular on the American left. Those concerns played into the political scenario as Republicans scrambled Thursday for a new vote after the extensions narrowly failed in a Tuesday night vote that required a two-thirds majority for passage.
House Republican leaders will bring the extension back for another vote Friday, but under different rules which will allow it to pass with a simple majority. It is expected to pass easily.
"What's going on with the Patriot Act is all about messaging," says James Carafano, a national security expert at the conservative Heritage Foundation in Washington. "The Patriot Act has become a metaphor for people's messaging as opposed to a real debate over a real law."
On Thursday, National Intelligence Director James Clapper warned the House Permanent Select Committee on Intelligence that failure to renew the provisions could stymie important intelligence-gathering operations both domestically and abroad.
"It is virtually impossible to rank, in terms of long-term importance, the numerous potential threats to US national security," Mr. Clapper said. "The United States no longer faces – as in the Cold War – one dominant threat. Rather, it is the multiplicity and interconnectedness of potential threats, and the actors behind them, that constitute our biggest challenge."
At issue in the Patriot Act renewal are three key law enforcement provisions. They include allowing the FBI to continue to apply "roving wiretaps" to listen in on terror suspects; letting authorities use any "tangible items," including library records, to spy on suspected terrorists; and the "lone wolf" provision that allows the FBI to spy on suspects in the US who have no known connections to terror groups.
From its inception, the Patriot Act has drawn criticism for its its potential effect on civil liberties and privacy rights. Civil liberty advocates say the law provides the government too much power to spy on Americans without their knowledge, infringing particularly on the Fourth Amendment protections against unreasonable search and seizure.
The vote against the extensions surprised the new GOP leadership Tuesday night, especially since extensions in the past have been basically pro forma. Twenty-six Republicans, many of them with tea party affiliations, voted against the law. They joined 122 Democrats who voted against it, many of whom had voted previously to extend the Patriot Act.
Tea party debate about government overreach may have played into the renewed debate over the act, says Robert Martin, Hamilton College political theorist who is working on a book called "Government by Dissent."
"If there is rethinking of some of the more strenuous provisions of the Patriot Act, it well may be part of a tendency [in American society] to limit civil liberties in the name of national security and then years later regretting that or at least rethinking it and wondering if we've gone too far," says Professor Martin.
The Department of Homeland Security says it has recently strengthened civil-liberties protections around Patriot Act provisions, such as the so-called national security letters, which allow the FBI to force corporations and other groups to release information on customers and members without their knowledge.
Mr. Carafano notes that all three provisions at stake in the Patriot Act extension have been found to be constitutional, and no challenges to them have risen to the Supreme Court. It's not clear how those provisions have played into the 36 known thwarted terror attacks on the US since 9/11, but it's likely they played some role in at least some cases, he adds.
"The American people are way over the Patriot Act," says Carafano. "We've all heard the hair on fire, throw the Constitution away debate, and, look around, the Constitution is still there. What you have are individual stakeholders for whom this is a cause célèbre and [who are] appealing to wedge constituencies."