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Why the Hell Did Democrats Just Extend the Patriot Act?

House leadership included the measure in a government funding bill—and even members of the Congressional Progressive Caucus went along with it.

Brendan Smialowski/AFP/Getty

It may seem to many Americans that Washington is entirely consumed by the impeachment inquiry, and that no other important business is getting done on Capitol Hill. But on Tuesday, in a break from televised hearings, the House of Representatives voted to fund the government through December 20. If passed by the Senate, the continuing resolution would prevent a government shutdown and forestall a debate about border-wall funding.

That’s all well and good, except that Democratic leaders had slipped something else into the bill: a three-month extension of the Patriot Act, the post-9/11 law that gave the federal government sweeping surveillance and search powers and circumvented traditional law-enforcement rules. Key provisions of the Patriot Act were set to expire on December 15, including Section 215, the legal underpinning of the call detail records program exposed in the very first Edward Snowden leak.

“It’s surreal,” Representative Justin Amash told me on Tuesday, just before the vote. Amash, an independent who left the Republican Party over his opposition to President Trump, pointed to the hypocrisy on both sides of the aisle. Republicans have “decried FISA abuse” against the president and his aides, he said, referring to the Foreign Intelligence Surveillance Act, “and Democrats have highlighted Trump’s abuse of his executive powers, yet they’re teaming up to extend the administration’s authority to warrantlessly gather data on Americans.”

By tucking the measure into a must-pass bill, House Speaker Nancy Pelosi forced many members who oppose the Patriot Act to vote in favor of its extension. “Although I do have serious concerns with reauthorizing Section 215,” Representative Bobby Rush of Illinois told The Hill, “we must focus on the bigger picture here.” In late October, Rush signed a letter co-authored by Representatives Rashida Tlaib and Earl Blumenauer, which read, “We will not support any legislation that extends Section 215’s sunset date if it fails to contain robust reforms that protect innocent people from unjust surveillance.”

On Monday night, Amash submitted an amendment to strip the Patriot Act language from the budget bill, but the amendment was blocked by Democrats on the Rules Committee.

Just 10 Democrats defied the leadership to vote against the resolution, including Tlaib, Alexandria Ocasio-Cortez, Ayanna Pressley, and Ilhan Omar (a.k.a. “the Squad”). “I cannot in good conscience vote in favor of a [continuing resolution] that reauthorizes unconstitutional mass surveillance authorities,” Tlaib told me, “especially under a president who has retweeted images of his opponents jailed and suggests anyone who disagrees with him is a criminal.” AOC tweeted before the vote, “Yeah that’s gonna be a no from me dog.”

Ultimately, the funding bill passed 231-192, mostly on party lines.

Some advocates have questioned whether the Congressional Progressive Caucus (CPC), which includes the Squad, should have done more to combator, at least, register its dissatisfaction withthe last-minute maneuver by Democratic leadership. On Wednesday morning, leaders of the CPC and the libertarian House Freedom Caucus circulated a joint letter on Capitol Hill calling for extensive reforms to the Patriot Act before it is reauthorized. But when it came time for the floor vote, CPC co-chairs Pramila Jayapal and Mark Pocan voted in favor of the funding measure. So did most of the caucus’s members. The only person in CPC leadership to vote against the bill was Omar.

“We needed a show of resolve from House progressives to underscore that protections for civil liberties are vital,” said Norman Solomon, the co-founder of digital activist group “Instead we got a cave-in from CPC leadership along with all but 10 Democrats.”

“There’s no other way to spin this,” a progressive staffer on the Hill told me. “This was a major capitulation. The progressive caucus has touted itself as an organization that can wield power and leverage the votes of its 90 members. And they didn’t lift a finger. Democratic leadership rammed this down their throats.”

Repealing the call records program had been considered relatively low-hanging fruit by reform advocates—not least because it’s no longer operational. The National Security Agency announced a year ago that it had shut down the program after a series of compliance mishaps (during which many millions of innocent Americans’ phone records were accidentally collected). Lawmakers in both parties have expressed bewilderment about why they should reauthorize a program the NSA doesn’t use.

But in recent hearings, Trump administration officials have argued that the government should retain the authority in case it needs it later. In early November, an NSA official told the Senate Judiciary Committee the agency feared losing a “tool in our toolbox” that could prove “valuable moving forward.”

Thanks to House Democrats, those fears are allayed for the moment.

The late-game maneuver irked some advocacy groups, which have argued that Democrats’ broader complaints about the Trump administrationits white nationalist advisers, hostility to immigrants, disregard for the Constitution, and disdain for the press—should compel them to prioritize surveillance reform, too.

“Democrats are actively arguing that Donald Trump is unfit for office,” said Sandy Fulton of Free Press. “They’ve repeatedly acknowledged that he’s a threat to our most vulnerable communities. And yet they’re going to give him the Patriot Act?” Democratic leaders want to isolate the debate about intelligence from the debate about Trump’s fitness for office, Fulton explained. “They want to have these two conversations separately. But that doesn’t make sense. They should be the same conversation.”

A CPC spokesperson defended its members’ support of the continuing resolution. While acknowledging the caucus would have “preferred a clean CR without the 215 extension,” she said, “the top priority for the Progressive Caucus is to ensure major surveillance reform is included in any ultimate reauthorization.” The extension will help this goal, she argued: “Without a short extension that allows us to obtain these major reforms, we would end up in a much worse position.”

Jayapal, the CPC co-chair, denied that this was a situation of Democratic leadership bearing down on progressives. “That happens pretty often,” she said, laughing. “So I actually know what that feels like. This wasn’t one of them.”

According to Jayapal, negotiations between members of the Judiciary Committee and the NSA-friendly House Permanent Subcommittee on Intelligence (HPSCI) were going well. “Almost every single thing in our letter has been addressed, but not quite to our level of satisfaction,” Jayapal said. “We’re still pushing really hard, and we need this extra time to be able to finish that.” Without HPSCI’s buy-in, she said, “there’s no point in marking up a bill … because that is often where we run into problems.”

But some advocates say the best way to get buy-in from the intelligence committee is a show of strength. It would only have taken a few dozen progressive defections to kill the continuing resolution, after which the leadership would have been forced to strip the Patriot Act from the bill and schedule another vote on funding the government. “Self-identified progressives should have thrown a monkey wrench into the Orwellian machinery,” said Solomon. “Putting up a fight now would have opened up possibilities for rolling back key aspects of the surveillance state.”

Jayapal disagreed. If the House had not passed the extension, she said, the GOP-led Senate would have sent over a clean reauthorization bill (with no reforms), and she worries moderate Democrats might have gone along with it—especially if faced with the alternative of allowing the provisions to expire altogether. “You could go through and name any strategy for me, and I would tell you why it would fail,” she said.

As for allowing the Patriot Act to sunset, Jayapal told me, “There was no scenario in which this thing was going to expire.” Eighteen years after 9/11, raising the specter of “the next attack” still has political potency. “We already heard that from the Senate,” Jayapal said.

These views represent competing visions for how progressives should wield power in Congress. Jayapal’s pragmatic streak has often contrasted with the more openly confrontational approach of Ocasio-Cortez or Tlaib. While members of the Squad have seemed to relish fights with top Democrats, Jayapal has advocated for sticking to principles, while finding ways to work collaboratively with leadership.

“In my ideal world, we wouldn’t have the Patriot Act. Period,” Jayapal said, “but that’s not where we are. So we’ve got to fix these things, and they need to be substantive, real changes. That’s what we’re working on.”