Revise the Patriot Act

ATTY. GEN. Alberto R. Gonzales has been the cheerleader-in-chief for the USA Patriot Act, the post-9/11 legislation that has made it easier for government investigators to obtain electronic records detailing the habits of ordinary Americans. So when even Gonzales complains that the FBI has been cutting corners in obtaining such sensitive information, Congress needs to take another look at the Patriot Act.

In particular, Congress needs to rein in the use of “national security letters” — subpoenas that don’t require judicial approval and can now be issued by agents in the field as well as at FBI headquarters. According to the Justice Department, 22% of documents examined at four FBI field offices turned up procedural violations that hadn’t been reported to FBI headquarters as required.

This prompted a mea culpa from Gonzales even more memorable than his suggestion that he was essentially out of the loop as eight U.S. attorneys were fired. “During the discussion of the reauthorization of the Patriot Act, I believed that the FBI was acting responsibly in using national security letters,” Gonzales said, adding, “I’ve come to learn that I was wrong.”

Congress shares the credit for bringing to light the fact that FBI agents are making too many mistakes in taking advantage of their new authority. In reauthorizing the Patriot Act in 2006, Congress required the Justice Department to “review the effectiveness and use, including any improper or illegal use, of national security letters issued by the Department of Justice.”

National security letters predate the Patriot Act, but that legislation made it easier for such subpoenas to be issued — all that is required is that it be “relevant to an authorized investigation” — and limited the ability of the subjects of such records to challenge them. A typical post-Patriot Act national security letter warns that federal law “prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions.”

In reauthorizing the Patriot Act, Congress took the modest steps of allowing limited judicial review of such letters and permitting their targets to consult an attorney. But the FBI still enjoys great leeway in tracking the telephone and Internet records of Americans who are not themselves suspected of terrorism. At the same time, the fact that the FBI is misusing its present authority doesn’t mean that the authority was wrongly granted in the first place. Gonzales and FBI Director Robert S. Mueller III may be right that abuses can be rooted out through a combination of better training and sanctions for government lawyers who failed to watchdog the subpoena process.

Still, it’s natural for Congress, seeing the FBI take a mile when it was given an inch, to ask whether even an inch of additional leeway was necessary — a question that wasn’t seriously posed during the largely rubber-stamp reauthorization of the Patriot Act.