WASHINGTON—Congress is moving steadily toward re-enactment of the USA Patriot Act, which gave the federal government extensive search and surveillance powers to fight terrorism.
But there are a few surprises.
An unlikely coalition of groups including civil libertarians and gun owners want changes, Republican senators are asking tough questions, and a former top legal adviser in the FBI told Knight Ridder that some of the Patriot Act's powers are too broadly defined.
"The law as written simply does not inspire sufficient confidence to overcome the fear of abuse," Michael Woods, chief of the FBI's national security law unit when the act was passed in 2001, wrote in a law journal article to be published later this month.
Woods, in an interview Monday, said he favored allowing investigators access to personal records only if the data were directly relevant to an investigation and if a judge was given more discretion in approving the government's request for them.
"Right now that section is broader than the people who use it intended it be, so some of the criticism has been valid," said Woods, who now works for MZM Inc., a defense contractor.
The overall tone of the debate over the Patriot Act has shifted from often-emotional opposition, sometimes marked by misunderstandings, to a carefully targeted examination of the 342-page bill, which Congress passed hurriedly six weeks after the Sept. 11, 2001, attacks.
"There were plenty of exaggerations and fear-mongering in the beginning from both sides," said Mary DeRosa, an analyst with the Center for Strategic and International Studies. "The act was either the only way to stop terrorism or it was going to lead to a dossier on every American."
Even the American Civil Liberties Union concedes that much of the act isn't controversial. Suggestions for change, such as Woods' recommendations, often focus on tightening legal language.
Viet Dinh, who as assistant attorney general was a primary author of the act, said Tuesday that he feels vindicated by this year's debate.
"The act was never as controversial or dramatic as it was made out to be," said Dinh, a Georgetown University law professor. "I think it will be re-enacted with few changes."
But the law, designed to prevent more terrorist attacks, was certainly far-reaching. It broke down barriers between law enforcement and intelligence officials, and it made it easier for them to tap phones, search records, monitor Internet transactions and collect data. It also lowered the standards for warrants in some cases.
Even defenders of the Patriot Act conceded it didn't get close attention on Capitol Hill at the time of passage, so they attached a "sunset" requirement in which 16 provisions of the bill, including the one offering easier access to records, be reviewed this year. If they aren't renewed, they expire.
"That was a brilliant piece of engineering," said Neal Katyal, a Washington lawyer and former Justice Department official, because it gave Congress some leverage over the Bush administration.
Since March, Attorney General Alberto Gonzales, FBI Director Robert Mueller and other top officials have trooped to Congress each week to defend the act and seek reauthorization.
Their message is that the new powers are essential but have been used with restraint. On Tuesday, Chuck Rosenberg, chief of staff to Deputy Attorney General James Comey, said special "sneak and peek" searches—in which the subject is informed of a search long after it's conducted—constituted about two out of every 1,000 searches in the last three years.
And special searches under the controversial records-access section have been used only 35 times, Gonzales said. Those were mainly for drivers' licenses and hotel records and didn't include libraries or medical records or gun sales.
But because these searches were approved by special federal courts that operate in secret, it's difficult even for Congress to monitor how the act has been used.
Members of both parties are mindful of history. Even if the FBI has been careful in using the new police powers, Democrats cite the abuses of the 1960s and 1970s, when the FBI spied on antiwar and civil rights groups.
Librarians remember the Library Awareness Program, when the FBI snooped on foreigners' reading habits, and they fear that the Patriot Act could be used to override privacy protections.
Republicans warn that a future administration might misuse the Patriot Act. Some conservative groups seeking changes worry that the act's definition of domestic terrorism is too broad and could apply to anti-abortion groups.
A bill by Sen. Richard Durbin, D-Ill., and Sen. Larry Craig, R-Idaho, would narrow the standards for surveillance and set time limits on delayed-notification searches.
So far, the debate on Capitol Hill has been methodical and low-key, focused on nuance, not nastiness. The House Judiciary Committee plans another hearing Thursday, more later this month, and hopes to pass its version of Patriot Act renewal by early June, spokesman Jeff Lungren said.
Another reason for the change in tone is the conciliatory approach of Gonzales. Unlike his predecessor, John Ashcroft, Gonzales has met with critics of the Patriot Act, including the ACLU and the American Library Association, and said he will consider modifications—but not major changes.
"It was a very refreshing meeting," said Carol Brey-Casiano, president of the library association, who met with Gonzales Monday. "He listened to us. We never had that opportunity with an attorney general in the recent past."
(Davies reports for The Miami Herald.)
(c) 2005, Knight Ridder/Tribune Information Services.
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