Barack Obama and the PATRIOT Act

06 January 2008

At last night's Democratic debate, Hillary Clinton made the following charge against Barack Obama:

"You said you would vote against the PATRIOT Act -- you came to the senate and voted for it."
On her website today, Clinton repeats the charge without expanding on it. However, there are a few problems with this contention.

First, as a point of clarity, Barack Obama was not a member of the United States Senate in 2001, and did not vote on the original PATRIOT Act. Senators Hillary Clinton and John Edwards, however, both voted in favor of it.

Second, Obama joined a filibuster that blocked a reauthorization of the PATRIOT Act, which would have made permanent 14 of the 16 original PATRIOT Act provisions.

Third, Clinton herself voted for the same bill she is now criticizing Barack Obama for supporting.

Fourth, Obama supported a separate act (the SAFE Act) that would have contained broader checks and balances than the original PATRIOT Act.

Fifth, Obama said the following when he ultimately supported a compromise act (the one Clinton is now criticizing him for supporting):

Let me be clear: this compromise is not as good as the Senate version of the bill, nor is it as good as the SAFE Act that I have cosponsored. I suspect the vast majority of my colleagues on both sides of the aisle feel the same way. But, it's still better than what the House originally proposed.

This compromise does modestly improve the PATRIOT Act by strengthening civil liberties protections without sacrificing the tools that law enforcement needs to keep us safe.

In this compromise:

  • We strengthened judicial review of both national security letters, the administrative subpoenas used by the FBI, and Section 215 orders, which can be used to obtain medical, financial and other personal records.
  • We established hard-time limits on sneak-and-peak searches and limits on roving wiretaps.
  • We protected most libraries from being subject to national security letters.
  • We preserved an individual's right to seek counsel and hire an attorney without fearing the FBI's wrath.
  • And we allowed judicial review of the gag orders that accompany Section 215 searches. The compromise is far from perfect.

I would have liked to see stronger judicial review of national security letters and shorter time limits on sneak and peak searches, among other things.

Senator Feingold has proposed several sensible amendments--that I support--to address these issues. Unfortunately, the Majority Leader is preventing Senator Feingold from offering these amendments through procedural tactics. That is regrettable because it flies in the face of the bipartisan cooperation that allowed the Senate to pass unanimously its version of the Patriot Act--a version that balanced security and civil liberty, partisanship and patriotism.

The Majority Leader's tactics are even more troubling because we will need to work on a bipartisan basis to address national security challenges in the weeks and months to come. In particular, members on both sides of the aisle will need to take a careful look at President Bush's use of warrantless wiretaps and determine the right balance between protecting our security and safeguarding our civil liberties.

This is a complex issue. But only by working together and avoiding election-year politicking will we be able to give our government the necessary tools to wage the war on terror without sacrificing the rule of law.

So, I will be supporting the PATRIOT Act compromise. But I urge my colleagues to continue working on ways to improve the civil liberties protections in the PATRIOT Act after it is reauthorized.

In the end, it looks like Obama came to the Senate promising to reform the PATRIOT Act, he took some real steps towards that goal, helped to block a reform that would make things worse, and ultimately voted on a compromise bill that reformed some (but not all) of the problems with the original. It appears to me that Hillary Clinton's criticism is off the mark.

If Clinton was arguing that Obama should have fought for a tougher compromise, or should have worked in more safeguards for civil liberties, that would be a real issue worth discussing. But that's not what she's arguing (if that were her argument, then it would apply with equal force to herself - she was, after all, a Senator who voted in favor of both the original and the compromise acts). Instead, this really appears to be either a criticism for "flip-flopping" or for talking too big a game. But if that's what this is, then that's clearly a misplaced criticism.

UPDATE: For more on the problems with Clinton's criticism, see here and here.

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