In a stunning slap at the democratic legislative process, the Senate Intelligence Committee, headed by Sen. Pat Roberts (R-Kansas), has suddenly and quietly scheduled a closed-door session for this Thursday to mark up its version of a renewed USA PATRIOT ACT, the frankenstein legacy of former Attorney General John Ashcroft and his then assistant Michael Chertoff (now secretary of Homeland Security).

The controversial act, many provisions of which seriously undermine basic Constitutional rights and protections, was just being examined in hearings by the Senate Judiciary Committee headed by Sen. Arlen Specter (R-PA), where it came under heavy criticism from both right and left. Both the Intelligence and Judiciary committees have jurisdiction over the act, but the Judiciary committee, with its open hearings, was widely seen as having primacy.

Critics of some of the act's provisions, such as the notorious library records provision, which allows federal agents, or local law enforcement authorities working for them, to inspect the patron or customer records of libraries, video stores and bookstores, without a warrant and without notification, or the sneak-and-peek provision, which lets federal agents spy and surveil on people without later notifying them, carry a "sunset provision," which means if they are not renewed this year, they would expire.

The administration has been arguing for renewal or for making the provisions permanent, but a coalition of conservative and liberal groups calling itself Patriots to Restore Checks and Balances, has expressed hopes of convincing a majority of the Judiciary Committees of both House and Senate to modify those and several other rights-threatening measures in the PATRIOT Act before sending the renewal legislation to the full Congress in June.

This surprise move by the Intelligence Committee, which is packed with senators from both parties who have not been particularly friendly to civil libertarians, appears to be an end run by supporters of the White House.

Says Lisa Graves, intelligence lobbyist for the American Civil Liberties Union, "This is an effort by the administration to get everything they want. It is an outrage." Graves says the move suggests that the administration and its congressional backers fear that they could lose in the Judiciary Committee, and are hoping to present the bill they want as a fait accompli and then call anyone who tries to weaken it "soft on terror."

"This is a radical bill," Graves says of the Intelligence Committee work-in-progress. She says her sources tell her that besides making the controversial sunset provisions of the PATRIOT Act permanent, the Intelligence Committee version of the revised act would greatly expand one of its most dangerous provisions, the administrative subpoena. "It would allow administrative subpoenas for virtually anything held by a third party, such as bank or phone or medical records, with only the merest unsubstantiated hint of a foreign connection." Equally troubling, she says, the Intelligence Committee version of the bill would strip out a current bar on using warrantless administrative subpoenas in cases that involved primarily protected First Amendment activities, such as legitimate political protest.

"I guess now we’ll have to see whether the people on the Judiciary Committee will have the political courage to stand up to this," says Graves.

While the Intelligence Committee's plan for a closed-door mark-up of the bill is a clear affront to democracy and to the Bill of Rights, it is in keeping with the history of the PATRIOT Act, which was drawn up--reportedly at the direction of Chertoff, who was then in charge of terrorism issues at the Justice Department--in the weeks after the 9-11 attacks, and then passed by Congress with no committee hearings and virtually no discussion. Although no member of Congress even had time to read the mammoth 362-page bill, it passed in the Senate with only one dissenting vote--cast by Sen. Russ Feingold (D-Wisconsin)--and then passed in the House by a lopsided 357-66 margin.

Over the intervening four and a half years, a dramatic grassroots movement against the PATRIOT Act has swept across the country, with some 165 communities so far, large and small, including some major cities and three state governments, passing legislation that seeks to protect their residents from the act--for example by barring local or state law enforcement authorities from supporting unconstitutional federal agency requests for information or surveillance or by calling on state congressional delegations to vote to rescind the act.

Given this broad cross-party popular opposition to the Act, it will be interesting to see how the full House and Senate vote on whatever PATRIOT Act renewal bill is ultimately presented out to them.

Unlike the Intelligence Committee session this Thursday, their votes will be in public.

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