The National Law Journal
Washington-Congress has no plans this year to give an early renewal of key parts of the controversial USA Patriot Act.
But the lawmakers could be thrust into another battle over the boundaries of executive power in the war on terrorism depending on the outcome of three cases in the U.S. Supreme Court this month.
The Patriot Act contains a sunset clause that would terminate new or expanded law enforcement/intelligence powers in 14 provisions of the law as of Dec. 31, 2005.
Despite the Bush administration's call to make those provisions permanent and to do it quickly, lawmakers are unlikely to take up the act in this election year, say Capitol Hill aides and observers.
A number of bills designed to rein in parts of the act have been introduced in both chambers in the past year. The broadest of those bills is the so-called Safe Act (Security and Freedom Ensured Act) of 2004, the result of a left-right coalition critical of the Patriot Act and its impact on civil liberties.
Sponsors of the bills have little hope of getting committee hearings on their measures, but instead plan to build support for them during the coming year and to look for opportunities to insert their proposals into other bills that reach the floors of the House and Senate.
Richard B. Levine
|RALLY POINT: Activists rally against the Patriot Act on the steps of New York's City Hall in February.|
But all of that could change, say aides and others, if the Bush administration loses in the U.S. Supreme Court this term. Two of the three pending terrorism-related cases deal with the power of the president to designate American citizens as enemy combatants, indefinitely detained and without certain rights. The third case involves aliens detained at the Guantanamo Bay naval base.
"The biggest opportunity for something to move is after the Supreme Court decisions come down in late June," said Charles Mitchell, legislative counsel to the American Civil Liberties Union (ACLU). The lower court in one of the enemy combatant cases, he said, found there was no congressional authority for the president to make enemy combatant designations.
If the Supreme Court agrees, Mitchell added, "That could potentially open a debate."
In the meantime, Mitchell, echoing others, said, "We're still moving on the Safe Act, gathering sponsors and working toward setting the stage for the sunset fight."
A Republican quartet
Leading the charge on the Safe Act is a quartet of Republican congressmen from Idaho, and that should surprise no one, said Mark Warbis, spokesman for one, Representative C.L. "Butch" Otter.
"Idahoans are an independent lot," and they take their constitutional rights and protections very seriously, said Warbis. After Otter successfully amended an appropriations bill last year in the House to deauthorize "sneak and peak" warrants under the Patriot Act, "his position was welcomed in Idaho in a very broad way," said Warbis.
The amendment did not survive to final enactment.
Otter is chief sponsor, with fellow Idaho Representative Mike Simpson and Representative John Conyers Jr., D-Mich., of the Safe Act in the House-H.R. 3352. In the Senate, his GOP colleague, Larry Craig, is chief sponsor of S. 1709, along with Richard Durbin, D-Ill. Another Idahoan, Mark Crapo, is also on the Senate bill.
"This has been a bipartisan issue from the beginning," said Warbis. "On our bill, you have Dennis Kucinich [D-Ohio] and Otter. You have Eleanor Holmes Norton [D-D.C.] and Ron Paul [R-Texas]. How often do you see those two on the same bill?"
The House bill has 56 cosponsors at this point and the Senate bill has 16, including the recent addition of Senator Arlen Specter, R-Pa., a moderate in a tough re-election fight.
The bills are nearly identical and would make the following changes to the Patriot Act:
Roving wiretaps under the Foreign Intelligence Surveillance Act (FISA): These are court-approved wiretap orders that specify neither the identity of the target nor the facilities the target is using. The Safe Act would impose the same requirements that are used for criminal roving wiretaps-specify a target and ascertain that the target is using the facility.
Sneak and peek warrants: The Patriot Act authorizes these warrants with delayed notice to the subject in a number of circumstances, including when notice would "seriously jeopardize" a prosecution. There is no time limit on the delayed notice. The Safe Act would impose a seven-day, renewable time limit and limit the reasons for delaying notice to danger to people, flight from prosecution or destruction of evidence.
Searches for records in hands of third parties, such as libraries: FISA search orders do not require individual suspicion. The Safe Act would permit these searches only where the FBI has "specific and articulable facts" connecting the records to a foreign power or a foreign agent.
National security letters for financial records, telephone and Internet service provider bills and consumer credit reports: These letters are available without court order or individual suspicion. The Safe Act would exempt libraries with Internet terminals.
Definition of domestic terrorism: The Patriot Act defines domestic terrorism as conduct that violates state or federal law and is dangerous to human life. The House version of the Safe Act would change that to acts dangerous to human life that constitute a federal crime of terrorism as defined in the act.
The ACLU describes the Safe Act as a "measured, informed response" to those parts of the Patriot Act that threaten civil liberties.
"It's certainly pragmatic," said the ACLU's Mitchell. "It's a piece of legislation the left-right coalition was able to agree on. There are other bills out there that take more things into consideration. We tried to find where everybody could come together to have the biggest amount of political support."
Steve Lilienthal, director of the Center for Privacy and Technology Policy at Paul Weyrich's Free Congress Foundation, agreed, explaining that two proposals in the Safe Act were key to conservative support.
"The sneak and peak provision-that's one of the key elements," he said. "The Otter version also includes a definition of domestic terrorism. The existing definition has been one of the concerns, that the government can use the Patriot Act to go after activist groups."
Lilienthal said he hopes the left-right coalition can expand its base, perhaps to include business and trade groups. Those groups, he explained, are now focusing on the same provision that has galvanized libraries to oppose the act-Section 215, which permits FISA records searches, including library, medical and other sensitive records, without individualized suspicion.
Besides the ACLU and the Free Congress Foundation, the coalition includes the American Conservative Union, Gun Owners of America, American Library Association, Center for Democracy and Technology, Electronic Freedom Foundation and American Booksellers Foundation for Free Expression.
In January, Attorney General John Ashcroft went on record as opposing S. 1709 in a letter to Senate Judiciary Committee Chairman Orrin Hatch, R-Utah. The legislation, he said, would roll back many of the most important anti-terrorism tools enacted by the Patriot Act.
"In fact, the SAFE Act would make it even more difficult to mount an effective anti-terror campaign than it was before the Patriot Act was passed," he wrote, adding that he would recommend a presidential veto if the bill were approved.
Ashcroft said the proposed limits on roving wiretaps would hamper the authorities' ability to investigate terrorist targets who are very adept at concealing their identities and methods of communication. Narrowing the reasons for issuing delayed-notice search warrants, he claimed, could result in suspects being tipped off and associates going into hiding or escalating their plans.
The standard for getting business and other records, he said, is more rigorous than the relevance standard under which grand juries can subpoena the same records in ordinary criminal investigations. And the limitation on the use of national security letters, he added, would make it more difficult to obtain information about e-mails sent from public computer terminals at libraries than about e-mails sent from home computers.
"The Safe Act will not make us safer," said Paul Rosenzweig, a senior fellow at the Heritage Foundation, a conservative think tank in Washington. But he does not see the sinister fallout predicted by the attorney general.
Rosenzweig, who has written about and testified on the Patriot Act, called the Safe Act a "political fig leaf." The ACLU, he said, "has to be against something" and has come up with a "pretty insignificant piece of work."
Ashcroft has already said that Section 215-permitting the records searches-has never been used to go after library records, noted Rosenzweig. It is also "affirmatively bad" to continue the myth that there is something new about delayed-notice searches, he said.
"We've used them against Gotti and other mob figures," he said. "And it's wrong to think the roving wiretaps we used against Gotti and others we ought not to use against terrorists. Judges can judge the reasonableness of them very well."
Even if the Safe Act passed, 100-0, Rosenzweig said, "It wouldn't change anything. It certainly wouldn't protect the people who are screaming about needing protection."
Rosenzweig said there are some changes that could be made to the Patriot Act that would address real problems. The definition of domestic terrorism, he said, could be tightened so as not to threaten activist groups.
What it means to provide "material support" to a terrorist group or organization, he added, also is not as clear as it could be to avoid the problems now triggering litigation.
Mitchell, Lilienthal and other supporters of the Safe Act said Ashcroft has overreacted to their proposals. At the very least, the proposed act has blunted early reauthorization of the Patriot Act, they added.
One Hill aide working on the proposal said, "They're important changes but they aren't ones that affect law enforcement's ability to investigate or combat terrorism. In the broadest possible sense, you could say we either put time limits on police powers or insert judicial review at some point. Almost every other police action is subject to one or both. These are long-standing principles in the American justice system."
While Safe Act supporters look for the right opportunity to raise their proposals, the debate continues. Senate Judiciary Chairman Hatch is holding hearings this week in his home state on the Patriot Act. And the act is already figuring into the election debate.
The ACLU's Mitchell, with an eye to the Supreme Court, said an immediate concern is that Congress not react hastily if the administration, should it lose in the high court, requests immediate legislation authorizing what it has been doing with enemy combatants.
"We will certainly be trying to prevent some sort of quick congressional grant of these powers," he said. "We would like to think the groundwork has been laid to prevent a quick response."
But, he adds, with respect to the Supreme Court's decisions and the Patriot Act, "It's an election year. Anything is possible."
Coyle's e-mail address is firstname.lastname@example.org.