The Patriot Act -- a favorite tool in the George W. Bush administration’s fight against terrorism -- may be renamed later this year as the Justice Act. But the law itself, including its controversial provisions that gave FBI agents more leeway to search computers and bank records, is likely to survive, albeit with some changes to limit who can be searched.
“Security and liberty are both essential in our free society,” Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said Tuesday in introducing a bill to extend three provisions that are due to expire Dec. 31. He said Democrats would “update checks and balances by increasing judiciary review” of the government’s investigations.
As a senator from Illinois, Barack Obama was a critic of the Patriot Act. Last week, however, the Obama administration asked the House and Senate to extend the three provisions. “The administration is willing to consider . . . ideas [for modifying the law], provided that they do not undermine the effectiveness of these important authorities,” Assistant Atty. Gen. Ronald Weich said in a letter to Congress.
That small concession was greeted by House Democrats on Tuesday as a “refreshing break” from the Bush era.
The House subcommittee on the Constitution held its first hearing on extending the Patriot Act on Tuesday. Rep. Jerrold Nadler (D-N.Y.), its chairman, said the law had “aroused a great deal of controversy and concern” but nonetheless “remains a useful tool” in investigating and preventing terrorism.
But many liberals are upset by the far-reaching search authority, and they were not ready to back the extension.
“This law was rushed through Congress after 9/11,” House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said. When an Obama administration lawyer testified in support of extending the law as is, Conyers stopped him. “You sound like a lot of people who came over from DOJ,” he said, referring to the Department of Justice under Bush.
Sen. Russell D. Feingold (D-Wis.), the lone opponent of the Patriot Act in 2001, served notice that he would lead an effort with other Senate liberals to make “fixes” in the law. Their bill, called the Justice Act, also would allow lawsuits against telecommunications firms that cooperated with the Bush administration and supplied information on their customers.
More controversial than the three provisions about to expire is the FBI’s use of national security letters to obtain financial records and computer information without the approval of a judge.
Both Leahy and Nadler said Tuesday that they would not seek to end the practice, but would press for changes. Leahy said his bill “would require the FBI to include a statement of facts articulating why the information it is seeking it is relevant to an authorized investigation.” He also said he planned to seek a change that would call for disclosing these searches in some cases. The Obama administration said it had not decided whether it would support changes in this part of the law.
Of the three expiring provisions, the most controversial allows the FBI, with a judge’s approval, to obtain an order to get business records, financial data, computer information or even library records that are believed to be relevant to a terrorism investigation. These searches are done in secret and the banks, for example, are not to notify the customer.
Leahy and Nadler said they would seek a change in the law that would require investigators to show a clearer link between the records being searched and an actual terrorist suspect.
On Tuesday, an Obama administration lawyer discounted concerns raised by the American Civil Liberties Union about gathering information from libraries. “At the time of the USA Patriot Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries. This simply has not occurred,” Todd M. Hinnen, a deputy assistant attorney general, told the House subcommittee.
Another section of the act authorizes a “roving” wiretap of a suspected terrorist or foreign agent who moves around and switches cellphones to avoid detection. These wiretaps must be approved by a judge. An Obama administration lawyer said that provision had been used about 22 times per year since 2001.
The third provision allows the government to spy on a foreigner who is suspected of terrorism but is a “lone wolf” with no apparent connection to a group such as Al Qaeda. Prior to 2001, the FBI could spy on suspected terrorists or foreign agents in the U.S., but only if they could be linked to some terrorist group or foreign government. Government lawyers said they have never used this provision but still urged that it be extended.
Republicans said the Patriot Act helped prevent a terrorist attack in this country, and the provisions should be extended as they are.
“The clocking is ticking,” Rep. F. James Sensenbrenner Jr. (R-Wis.) said Tuesday.
An ACLU lawyer said much of the law is “unconstitutional” and should be repealed or revised: “The time for Patriot Act reform is long overdue,” said Mike German, who is also a former FBI agent.