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Monday, April 26, 2004

WASHINGTON -- A month and a half after the Sept. 11, 2001 attacks on New York Washington and Pennsylvania, Congress approved the USA Patriot Act to give law enforcement officials new tools to fight terrorism.

The vote was overwhelming in both chambers. The House approved it 357-66; the Senate 98-1.

 
 
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The consensus didn't last long, as the Patriot Act soon began to spark impassioned debate about whether its potential damage to civil liberties was worth its added protections against terrorists.

Now, a new consensus appears to be emerging, despite the heated rhetoric of this presidential election year, that would scale back some of the act's more controversial provisions -- or at least require more judicial oversight as authorities apply the act's broad surveillance powers -- while institutionalizing the ability of law enforcement and intelligence agencies to share information.

At least four states and 270 communities officially have called for limiting law enforcement access to personal information, including library and medical records. Also drawing fire have been provisions of the Patriot Act that allow authorities to search property without telling the owner, to conduct "roving wiretaps'' and to pursue nationwide search warrants.

A recent poll by the nonpartisan Council for Excellence in Government found that most Americans, 56 percent, considered the Patriot Act a net plus for the country. But half also expressed concern about how the act is being applied and wanted Congress to examine it carefully before deciding whether to renew its key provisions.

President George Bush is taking his case for renewing the act on the campaign trail. He told supporters at a recent rally in Hershey, Pa., that "the Patriot Act makes it able for those of us in positions of responsibility to defend the liberty of the American people. It's essential law.''

Sen. John Kerry, D-Mass., the presumptive Democratic candidate, voted for the Patriot Act in 2001 and still supports major parts of it. But Kerry now charges that the Bush administration has misused aspect of the law. He has promised to eliminate "sneak and peek'' searches and "fishing expeditions into people's library and business records.''

Major parts of the Patriot Act don't expire until the end of next year, but Bush wants Congress to make them permanent right away. That's unlikely because Rep. James Sensenbrenner, the Wisconsin Republican who chairs the House Judiciary Committee, has stated categorically that his panel won't take up the issue until next spring.

Whatever the outcome of the Nov. 2 election, most lawmakers expect Congress to hold hearings on the Patriot Act before deciding whether to renew, expand or curtail it. Nobody, at this point, expects it will be repealed.

"It is important to provide a balance between security and civil liberties," said Sen. Mike DeWine, R-Ohio, a member of both the Senate Intelligence Committee and the Senate Judiciary Committee.

Signed into law by Bush on Oct. 26, 2001, the Patriot Act contains 153 separate provisions in 300 pages. Many have little impact on the daily lives of most Americans.

For example, the law allows money to be spent to re-establish a government office destroyed by terrorists. It condemns discrimination against Arab or Muslim Americans. It permits the FBI to hire more translators.

Most important, Patriot Act supporters say, the law tore down the legal wall that prevented federal law enforcement and intelligence agencies from sharing domestic intelligence with each other and local officials. The wall had been erected in the 1970s after revelations that the FBI had been spying on nonviolent social and political movements.

"[The Patriot Act] changed our world and has made us immeasurably safer,'' U.S. Deputy Attorney General James B. Comey testified at a recent Senate Judiciary Committee hearing.

Comey cited the Justice Department's "successful dismantling'' of a Portland, Oregon terror cell. Using the Patriot Act's expanded surveillance and intelligence-sharing provisions, the FBI exchanged information with local officials, which "gave prosecutors the confidence not to arrest the suspect prematurely,'' Comey said. "Ultimately, prosecutors were able to collect sufficient evidence to charge seven defendants and then to secure prison sentences for the six defendants taken into custody....''

But David Harris, a professor at the University of Toledo and an expert on criminal justice, argues that the Patriot Act "is more far-reaching than people seem to realize.''

While "sold'' to lawmakers as a way to fight terrorism in the wake of Sept. 11, the Bush Administration "now is making the case for it by saying they're using it to fight all kinds of crime,'' Harris said.

"If they had gone to Congress and said they needed some of these changes for crime fighting, it's a solid bet that it would never have passed. Many of the things in the Patriot Act have been on the FBI wish list for years and years. This was an opportunity to get them into law.''

The Patriot Act was in the spotlight during recent hearings of the 9/11 commission, which is investigating whether the Sept. 11, 2001 attacks in New York, Washington and Pennsylvania could have been prevented. The commission is expected to release a final report by July 26.

In preliminary findings, commission staff noted that the Patriot Act "provided additional tools and has lowered or removed legal hurdles that were widely believed to have hindered the FBI's intelligence investigations.'' But, the staff noted, "there appears to be widespread confusion -- even among (Department of Justice) and FBI personnel -- over what the Patriot Act actually allows.''

During its public hearings, the 9/11 commissioners have appeared to be leaning towards recommending the creation of a new domestic intelligence agency. Another suggestion is to create a director of national intelligence with a 10-year term who would coordinate activities of existing agencies.

Such proposals have prompted considerable pre-emptive opposition.

CIA Director George Tenet said a intelligence czar floating about without an agency would last "about 10 minutes'' in the territorial climate of the Washington bureaucracy. FBI Director Robert Mueller said many people would fear a domestic intelligence agency would trample on civil liberties. Former Attorney General Janet Reno said setting up yet another organization would make it that much harder for agencies to coordinate activities.

Meanwhile, Attorney General John Ashcroft is leading the charge to strengthen the Patriot Act. The Justice Department, which has created a Web site on the Patriot Act, www.lifeandliberty.gov, wants the power to issue administrative subpoenas instead of having to go to a judge or grand jury for authorization. The department also wants to hold terrorism suspects in jail without bail, and to make more terrorist crimes subject to the death penalty.

On the other side, an unusual political coalition -- compromised of Democrats and Republicans, liberals and conservatives -- has joined to push for weakening the Patriot Act. Members include the American Civil Liberties Union, the American Conservative Union, the American Library Association and Gun Owners of America.

The first legislative action on the law since it was passed in 2001 took place last July when the House voted 309-118 for an amendment, sponsored by Rep. C.L. Otter, R-Idaho, that would cut off funds needed to implement the Patriot Act's "sneak and peek'' provision. The amendment eventually was dropped in negotiations with the Senate, but its approval in the House was considered an important show of strength by those who wish to repeal parts of the Patriot Act.

Separate legislation has been introduced by Sen. Larry Craig, R-Idaho, Sen. Dick Durbin, D-Ill., and Otter that would revamp the "sneak and peek'' provision and other parts of the Patriot Act in ways opposed by the Bush Administration.

Called the "Security and Freedom Enhancement'' or SAFE Act, the legislation would end nationwide search warrants, limit roving wiretaps and require law enforcement officials to justify secret surveillance of a suspect every seven days to a federal judge. It also would require the FBI to state its reasons for suspecting someone of terrorist activities before seizing his or her library or medical records.

"I believe the SAFE Act is a measured, reasonable, and appropriate response to concerns we have with the USA PATRIOT Act," Craig said. "This legislation intends to ensure the liberties of law-abiding individuals are protected in our nation's fight against terrorism, without in any way impeding that fight."


Ann McFeatters can be reached at amcfeatters@nationalpress.com or 1-202-662-7071. Karen MacPherson can be reached at kmacpherson@nationalpress.com or 1-202-662-7075.
First published on April 26, 2004 at 12:00 am
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