Planned Sequel to Patriot Act Losing Audience

Six weeks after the Sept. 11 attacks, Rep. C.L. “Butch” Otter of Idaho was a lone wolf -- arguing that Atty. Gen. John Ashcroft didn’t need more power to fight home-grown terrorists.

Otter was the only member of Congress to argue against the USA Patriot Act when the terrorism-fighting law was debated on the House floor. But these days, the Republican has plenty of company. And the Justice Department, which in recent months has drafted a measure that would expand its powers, may be on the retreat.

Last week, the House overwhelmingly passed a measure that would repeal a portion of the Patriot Act, which had been passed while the rubble at the Pentagon and World Trade Center still smoldered. The so-called Otter amendment would take away federal investigators’ power to conduct “sneak-and-peek” searches -- unannounced searches of homes and businesses.

The measure would be a small adjustment to the Patriot Act, but it indicates a growing belief among lawmakers that some investigators have abused their new powers and need to be held more strictly accountable. Those concerns may diminish any prospects for a sequel to the Patriot Act.

Whatever the final fate of the Otter amendment, the Justice Department has voiced strong objections to the measure, declaring it the “Terrorist Tip-Off Amendment” in a letter to House Speaker J. Dennis Hastert (R-Ill.) last week. No comparable measure has been introduced in the Senate, although proponents hope to find a sponsor soon.

In a speech earlier this month, however, Otter was generally optimistic, telling business and community leaders in Boise, “Things are looking up.”

When Congress approved the Patriot Act about 21 months ago, the measure amounted to the legislative equivalent of a blank check. It was formally known as the “Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001.”

The sequel -- dubbed Patriot Act II by critics but never officially proposed by the department -- would have made it easier to hold suspects and deny them bail and included provisions that would set up a DNA database for people associated with terrorist groups and lift court orders barring police from spying on dissidents, among other features.

But the recent release of a joint congressional report investigating the Sept. 11 attacks -- and the nearly 900-page document’s portrayal of the intelligence community as stunningly inept in tracking down clues before the attacks -- has given some members of Congress pause about giving the same agencies much new clout.

The Justice Department already seems to be adjusting its sights. One person familiar with the department’s agenda said the original Patriot II proposal is now “dead.”

Congressional sources said they have not heard anything from the department regarding any broad new legislation for months, and they believe that any major proposals may not come until next year, if at all.

One top congressional aide said members seem primarily interested these days in their role as watchdogs. “We are going to do aggressive oversight, looking into how the act is working,” one person said. The idea of expanded powers, he added, may not be addressed until the end of 2005, when the current Patriot Act is set to expire.

The swinging pendulum shows how critics of the law are becoming more astute in organizing opposition and getting members’ attention. Dozens of cities have passed what are largely symbolic ordinances that oppose the Patriot Act.

The law is also inspiring some strange bedfellows and odd alliances: Besides the conservative Otter, a former food-products company executive and National Rifle Assn. member, opponents of the sneak-and-peek search provision included the American Civil Liberties Union.

“The Otter amendment is the first unequivocal indication that lawmakers are taking seriously a broad, grass-roots backlash against excessive government powers,” said Laura Murphy, the ACLU’s chief Washington lobbyist. “Hopefully, this is the first trickle in a flood of Patriot fixes.”

She said she expected that the Justice Department would launch more of a stealth-like movement to win new powers by slipping proposals into other pending legislation not necessarily related to terror-fighting.

“They are not going to have as much success as they did in the immediate aftermath of 9/11,” she said. “The further we get from 9/11, the more people want accountability.”

The ACLU has launched a TV ad blitz that attempts to show how essential freedoms have been curtailed in the name of national security since Sept. 11.

The first ad aims squarely at the sneak-and-peek law, set in a middle-school classroom where a group of young teens has just finished a lesson on the Bill of Rights. One student asks about a new law “that allows government agents to secretly search your house and not even tell you.” The teacher struggles for answers.

Mark Corallo, a Justice Department spokesman, said officials intend to seek additional terrorism-fighting legislation from Congress, although he declined to discuss the nature or timing of the proposals, including the status of Patriot II.

“We are pressing forward with constitutionally sound, common-sense measures to protect the American people from terrorism,” he said.

Recent Justice Department actions suggest an awareness by officials of a public-relations problem. Some federal prosecutors have started holding informal citizen briefings around the country to clear up what they consider to be misinformation about the act.

Another problem is that the department has lost the driving intellectual force behind the original Patriot Act: Viet Dinh, who was head of the Justice Department’s office of legal policy, left at the end of May to return to teaching at Georgetown University law school.

Ashcroft and FBI Director Robert S. Mueller III have said the Patriot Act has been instrumental in helping them track down and prosecute suspected terrorists.

Its key feature is that it broke down a legal wall, which had existed since the 1970s, that prohibited the intelligence community from trading clues and tips with criminal prosecutors.

But critics say the law has become a tool to spy on citizens and pick up innocent immigrants.

The Otter amendment, which the House last week approved by a vote of 309 to 118, would block the Justice Department from using any funds to conduct sneak-and-peek searches, in which a judge approves a search warrant but agrees to delay notifying the target for a “reasonable” period.

Such searches have been common in criminal cases for years. Prosecutors say the searches are appropriate where the targets may flee or destroy evidence or harm others.

Justice officials argue that the amendment would have a devastating effect on their ability to detect and prevent terrorism and to combat other serious crime.

They say the provision has been used judiciously, in a total of 47 cases over the last two years, including non-terrorism investigations.

Otter was not available for comment, but his spokesman, Mark Warbis, said even the congressman was surprised by the margin of victory. “We rushed to judgment” after Sept. 11, Warbis said, “and now a growing number of his colleagues in Congress are seeing that there are some serious problems with this law that must be addressed at our own peril.”

Added a top Democratic House aide: “I had no idea that we had so many Republican friends on this issue. It shows a lot of discontent on their side.”