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Former state AG provides an update on the Patriot Act 20 years post-9/11

The U.S. Capitol Building is seen from the Washington Monument at sunrise on Aug. 27, 2021 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)

The 20th anniversary of 9/11 is this Saturday, and one of the big changes after the attacks came when Congress passed the Patriot Act. That act vastly increased the government’s surveillance powers.

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Where does the Patriot Act stand now?

Well, it expired.

“It didn’t get a lot of attention,” said Rob McKenna, former state attorney general, about the expiration. “I didn’t notice it at the time, even though I followed the Patriot Act pretty closely for many years.”

It had been expiring, he explained, with parts of it reauthorized over many years.

“It had been narrowed down,” McKenna said. “But some of the really key provisions remained in effect, like the power of the government to indefinitely detain immigrants based on secret information.”

When Congressman Jerry Nadler proposed to reauthorize it in March 2020, a coalition of Democrats and Republicans got together and supported the extension. McKenna says it went to the Senate, and President Trump threatened to veto it.

“Then the House decided to postpone voting on the Senate version of the bill, and so it expired,” he said. “So it made progress in both chambers, but the chambers have to agree on the final version of the bill, and the House never took its final vote.”

What this tells McKenna is that 20 years after 9/11, maybe the country is relaxing a little bit. Or, on the other hand, “you could argue we’re making appropriate adjustments to the law that was passed in the wake of the worst terrorist attack in national history.”

“And the fact that it remains expired now, and that there hasn’t been a lot of news about it tells me that people have decided that we don’t need this particular law in effect, which, after all, is a very dramatic law that was passed in about two months,” he said. “[It’s] pretty well recognized that very few people who voted on it in Congress actually read it.”

Concerns were also raised early on about how far the Patriot Act went.

“At the same time, proponents will say, ‘look, we haven’t had another major terrorist attack, in part because we had these expanded powers,'” McKenna noted. “To me, I think that the Patriot Act expiring is not that big a deal because the fact is many structural changes were made in national security and national intelligence gathering. And I think we are safer than we were before.”

Many of the structural changes of the act, McKenna pointed out, remain in effect. As an example, the United States has a Department of Homeland Security, which didn’t exist before 9/11.

“I think those permanent changes probably leave in place the most important elements of the reforms that were made after 9/11,” McKenna said.

There’s also still the TSA, the no-fly list, and the terrorist screening database.

“The terrorist screening database is a central terrorist watch list kept up to date by the FBI’s terrorist screening center,” McKenna explained. “And the no-fly list is a subset of that list.”

“Although, honestly, as I was researching that database, I began to wonder how effective it really is. It’s got somewhere between 700,000 and a million people on it. But it includes people like one of the Boston Marathon bombers. He was on it, prior to the bombing. It includes the individual who was responsible for the Pulse nightclub massacre in Florida. It included people who showed up on Jan. 6 to attack the Capitol building in D.C.,” he said.

But it does exist as a central database that federal, local, and state governments use and add names to.

“At least we can say we have a database that didn’t exist prior to 9/11,” McKenna said. “And hopefully it still has some utility, notwithstanding the examples I just gave you.”

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In the 20 years since the 9/11 attacks, a number of provisions of the Patriot Act were struck down as being unconstitutional.

“The courts have played their role in reining in some of the less well considered pieces of the Patriot Act that went too far,” McKenna said. “Other parts have expired, had expired before. Now the entire act has expired. So I would say we’re probably, legally speaking, back to a position in the federal government that’s more like the pre-9/11 position in terms of the government powers, at least as far as the Patriot Act is concerned.”

“That’s not to say that there aren’t still other laws on the books that have expanded the government’s power,” he added. “But as I’m fond of saying, the checks and balances — in a general sense — do work. When specific parts of new laws are viewed as going too far, as being too extreme, people have a chance to test them in court. Sometimes that results in the law being struck down, and that’s happened a number of times with regard to specific provisions in the Patriot Act.”

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