PATRIOT Act in Limbo Amid New Spying Flap

by William Fisher

A bipartisan majority of senators refused to reauthorize the USA PATRIOT Act Friday, which was hurriedly passed six weeks after the attacks of Sept. 11, 2001, and gave U.S. law enforcement agencies significant expanded powers to investigate suspected terrorists.

While in favor of most of the act's provisions, senators opposing reauthorization targeted several provisions that they said failed to protect privacy and liberty. These include some of the PATRIOT Act's most controversial provisions that will soon expire, along with the whole legislation.

The bill's Senate supporters, led by Majority Leader Bill Frist of Tennessee and Judiciary Committee chairman Sen. Arlen Specter of Pennsylvania, were unable to muster the 60 votes needed to cut off debate and overcome a threatened filibuster by Sen. Russ Feingold, a Wisconsin Democrat, and Sen. Larry Craig, a Republican from Idaho. The final vote was 52-47.

The bill that was rejected was the product of a "conference committee" between the Senate and the House of Representatives that attempted to reconcile the different versions of the reauthorization produced by the two legislative bodies. If a compromise among senators is not reached, the 16 PATRIOT Act provisions will expire on Dec. 31.

Opponents of reauthorization appealed for a three-month extension to give House-Senate conferees further time to consider changes. But President George W. Bush, Majority Leader Frist, and House Speaker Dennis Hastert have said they will not accept a short-term extension of the law.

Critics of the Act were handed new ammunition for their campaign by a report in Friday's New York Times alleging that President Bush authorized the National Security Agency (NSA) – part of the Pentagon's intelligence apparatus – to monitor the international phone calls and international e-mails of hundreds, perhaps thousands, of people inside the United States.

Previously, the NSA limited its domestic surveillance to foreign embassies and missions and obtained court orders for such investigations.

"I don't want to hear again from the attorney general or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care," said Sen. Feingold, who was the only senator to vote against the PATRIOT Act in 2001.

"It is time to have some checks and balances in this country," shouted Sen. Patrick Leahy, ranking Democrat on the Judiciary Committee. "We are more American for doing that."

President Bush, Attorney General Alberto Gonzales, and Republican congressional leaders had lobbied fiercely to make most of the expiring PATRIOT Act provisions permanent, adding new safeguards and expiration dates to the two most controversial parts: roving wiretaps and secret warrants for books, records, and other items from businesses, hospitals, and organizations such as libraries.

Feingold, Craig, and other critics said that was not enough, and have called for the law to be extended in its present form so they can continue to try and add more civil liberties safeguards.

The central issue raised by Feingold, Craig, and their supporters is whether Congress has been rigorous enough in assessing how the PATRIOT Act – which the White House calls vital to its war on terror – has been implemented.

Many lawmakers were stunned by recent press reports, denied but not corrected by the Justice Department, that the FBI has issued as many as 30,000 "National Security Letters" (NSLs) since the law was passed. The letters order private and public entities to turn over records and other private data about U.S. citizens – and demand that they remain silent about it.

The government began issuing NSLs in the 1970s as "narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents." The PATRIOT Act expanded those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not necessarily alleged to be terrorists or spies.

The Washington Post reported that the FBI now hands out over 30,000 national security letters per year, "a hundredfold increase over historic norms," which are allowing the government to delve "as never before into the telephone calls, correspondence and financial lives of ordinary Americans."

Sen. Specter said the 30,000 figure – first published in the Washington Post – was incorrect. However, he added that he could not disclose the correct number because the information is classified.

Expanded federal powers to seek library, business, and medical records have attracted considerable public and congressional concern. Under the House version of the law, those powers would be subject to judicial review. But, critics say, many other features of the reauthorization bill also deserve more congressional attention.

The controversial issue of library record searches intensified earlier this year, after an American Library Association (ALA) report found that "U.S. law enforcement authorities made more than 200 requests for information from libraries since October 2001."

The ALA said at the time, "What this says to us is that agents are coming to libraries and they are asking for information at a level that is significant, and the findings are completely contrary to what the Justice Department has been trying to convince the public."

The compromise sunsets the PATRIOT Act's infamous "library provisions" in four years, but will not tighten the standards the government needs to subpoena personal information. The government can still obtain personal data merely by showing "relevance" to a terrorism investigation.

Other changes in the law made by House-Senate conferees include allowing intelligence gathered under the Foreign Intelligence Surveillance Act (FISA) to be used as evidence in a criminal prosecution, and establishing a judicial review to determine whether the records are relevant to a terrorist probe before investigators can seize a company's business records.

They also limit the use of roving wiretaps to cases in which officials show that a target may thwart surveillance; establish a judicial review of "national security letters"; and require reports to Congress on how often National Security Letters are used.

Finally, they extend the duration of FISA surveillance of non-U.S. persons; require that people subjected to a "sneak and peek" warrant – in which their property has been searched without their knowledge – be notified within seven days of the search, unless law enforcement applies for an extension.

The Senate's action today will be gratifying to human rights groups. Typical is the American Civil Liberties Union, which has called on senators to reject the compromise agreement on reauthorization and urged that body to vote against a motion for cloture.

Said the ACLU, "Concerns about the lack of substantive reforms to the anti-terrorism law have come from an unusual set of allies, including former Republican Congressman Bob Barr, the American Conservative Union, librarians, and other moderate organizations."

(Inter Press Service)

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