One More Act for The Patriot Act
Congress tries to square civil liberties with the terror war
In the dark days that engulfed the nation after the 9/11 attacks, Congress moved with lightning speed and near unanimity to approve the U.S.A. Patriot Act and grant the federal government broad new investigative powers that then Attorney General John Ashcroft, the law's author, promised would help root out the terrorists living here.
Under the act, law enforcement agencies and prosecutors were given a bundle of new tools, from a revamped intelligence-sharing system and a raft of anti-money-laundering powers to roving, single-warrant wiretaps that make it easier to continuously track terrorism suspects who use networks of cellphones. But the new law also gave the feds a virtually free hand to secretly rummage through the records and homes of ordinary Americans, even those with no ties to suspected terrorists or spies.
Now, more than four years after President Bush signed into law the act's 1,000-plus antiterrorism measures, the long-running debate over whether the act compromises civil liberties has relegated 16 of the act's most controversial provisions to a kind of legal limbo. All 16 were designed to expedite the government's ability to conduct domestic searches, seizures, wiretaps, and electronic surveillance.
Expiration date. Because of civil liberties concerns, framers of the original Patriot Act designed those 16 provisions to expire at the end of 2005 to allow Congress to re-evaluate them. It was a White House priority last year to make the measures permanent, but that high-profile effort collapsed dramatically in December. After the New York Times reported that the president had secretly approved a potentially illegal program of domestic eavesdropping, Senate Democrats and a handful of Republicans killed the reauthorization effort with a filibuster. At the last minute, Congress then reauthorized the 16 provisions in their previous form--but only through February 3.
Where to now? That's not exactly clear. The defeated bill was an amalgam of a bipartisan Senate measure that passed unanimously last July and contained clear limits on government surveillance and a House bill that had far fewer restrictions. Democratic Sen. Russ Feingold of Wisconsin, the only senator to vote against the original Patriot Act and a leader in the push to expand surveillance restrictions, called the bill's death a victory and demanded tighter limits on domestic spying. But the administration and House Republican leaders were apoplectic. After Congress passed that temporary extension, the president denounced the filibuster as partisan politics that played into the hands of terrorists.
So everyone's angry, and the battle is about to be joined again. The administration is facing a large and unlikely assortment of interest groups--from the American Civil Liberties Union to the U.S. Chamber of Commerce--which are demanding more limits on government intrusion (the public is more ambivalent, with polls showing support for minor modifications of the Patriot Act).
Despite the bombast on both sides, they actually agree on a number of changes that were proposed in the defeated legislation and are likely to appear in any new measure. The defeated bill would have provided for more oversight and public disclosure of orders issued by a special court established in 1978 to oversee requests by law enforcement agencies for surveillance of suspected foreign agents in the United States. And that bill also would have limited the government's ability to retain or disseminate information collected on citizens but found to be irrelevant.
So the real controversy is over a handful of surveillance measures that have troubled civil libertarians since the act's inception. Under the so-called library provision, the FBI can demand from businesses "any tangible things," including books, records, papers, documents, and other items it deems necessary for a foreign intelligence investigation. Opponents say to avoid unwarranted fishing expeditions, the agency should prove that the records sought are not only relevant to an investigation but also pertain to a foreign power or agent, or to someone who has been in contact with a terrorist or spy. The main sponsor of the act's renewal, House Judiciary Committee Chairman F. James Sensenbrenner, has launched an E-mail campaign to highlight dozens of civil liberties safeguards already included in the proposed reauthorization bill.
Under the current act, federal agents can also easily issue so-called National Security Letters that give the G-men unfettered access to individuals' financial information--from credit reports to real estate transactions. Though the letters predate the Patriot Act, their reach was broadened and their use proliferated: A Washington Post story reported a hundredfold increase over historic norms. The Patriot Act barred businesses from telling anyone if a client's personal information had been collected from them. Critics want that gag order lifted. They seek a change that will allow recipients of the letters to challenge them in court. Backers say the provision is an essential tool for secretly tracking terrorists.
Critics also want the government to notify within seven days the targets of "sneak and peek" clandestine break-ins of homes or businesses. The act currently requires notification within a "reasonable period." And they are asking that the controversial provisions, if reauthorized, come up for renewal again in the future to guarantee oversight.
Taking sides. President Bush has accused senators who blocked the Patriot Act's reauthorization of acting irresponsibly and "endanger[ing] the lives of our citizens." But opponents say there is growing concern about the government's intrusion into the lives of ordinary Americans. "After 9/11, people were very frightened and upset about what had happened, but now they are recognizing that safety and constitutional rights are not mutually exclusive," says Caroline Fredrickson of the American Civil Liberties Union.
But with Feingold and other senators saying they won't budge until the bill is changed, and Sensenbrenner and the White House standing firm, reforms--if they come at all--may arrive later rather than sooner. Jeff Lungren, Sensenbrenner's spokesman, said his boss isn't looking to make a deal with senators. "Areas of compromise? We've already done those," Lungren said. "We already put in dozens of civil liberties protections."
Time is not on the Patriot Act's side. The House is not back in session until January 31; the Senate is preoccupied with Judge Samuel Alito's confirmation, and Senate Judiciary Committee hearings are planned for February on the administration's domestic-spying program. So it seems almost certain the dispute will linger beyond the February deadline. That means the Patriot Act may have to do the limbo more than a little while longer.
This story appears in the January 23, 2006 print edition of U.S. News & World Report.