As tough as cowards

By The Economist | WASHINGTON

EVEN in light of the recent focus on health-care reform, it's a bit astonishing how little attention has been paid to the wrangling in the Senate over three important Patriot Act powers set to expire at the end of the year. While some Democratic senators had initially shown interest in using the occasion to review the broad edifice of post–9/11 surveillance powers granted the executive branch, legislators now seem poised to move ahead with reauthorisation absent even the mildest additional civil-liberties safeguards.

The Obama administration had requested reauthorisation of all three "sunsetting" Patriot-Act powers: roving wiretap authority; license to spy on so-called "lone wolf" terror suspects under the broad aegis of the Foreign Intelligence Surveillance act; and "section 215" orders, which allow investigators to compel the production of business records or any other "tangible thing". Yet the Justice Department had also signaled its openness to "modifications" designed to protect the privacy of Americans and check potential abuses.

Russ Feingold took them up on the offer with an ambitious proposal that would have substantially overhauled the new foreign-intelligence-surveillance architecture. More modest was a proposal by Patrick Leahy, the Judiciary Committee's chairman, that would have somewhat constrained the scope of both 215 orders and the controversial "national security letters", which internal probes found to be subject to endemic misuse.

Yet even the more moderate reforms proved a bridge too far for Dianne Feinstein, who swooped in at the last minute before last week's legislative mark-up session with her own substitute bill, stripping away even the feeble restraints Mr Leahy had supported. The reason was the purported fear of FBI officials that these constraints might interfere with a number of "ongoing investigations", intimated to have sprung from the arrest of suspected bomb plotter Najibullah Zazi. Over Mr Feingold's objections, Ms Feinstein's language was made the template for renewal legislation, and the committee is expected to report a final draft out to the full Senate on Thursday.

It would be a serious mistake for the Senate to forgo a golden opportunity to revisit the broad array of surveillance powers created over the past eight years—at first in the panicked aftermath of the 9/11 attacks, and then in the shadow of a bellicose administration quick to tar opponents as soft on terror. It is hardly a surprise that investigators prefer the greatest possible latitude in carrying out their inquiries—and there may well be reason to grandfather investigations already in progress under the current rules. But if the standard practice of the intelligence agencies now involves programmes that cannot proceed without authority to conduct dragnet acquisition of records without even a tenuous secondhand connection to suspected terrorists or their activities, as Mr Leahy's original bill would have required, there is something wrong with that practice. The parlous incentive for legislators in the intelligence sphere is always, alas, to defer to the executive: Abuses of power will, by definition, occur in secret—while any intelligence failure is apt to be both visible and blamed on any who had the temerity to call "halt". The stage then seems set for yet another show of war-on-terror "toughness" born of cowardice.