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Shortly before leaving office, former Attorney General John Ashcroft said his top regret was not doing more to bolster political support for the USA Patriot Act. Last week, the new AG, Alberto Gonzales, made it clear that he does not intend to repeat his predecessor’s mistake. As debate over the renewal of key Patriot Act powers kicked off on Capitol Hill, Gonzales pushed for reauthorization of all provisions set to expire at the end of the year. In stark contrast to Ashcroft’s unyielding posture, Gonzales struck a conciliatory tone before Congress, indicating that the administration would be willing to accept some modifications. Rather than dismissing criticism of the law, Gonzales met opponents head on. And in an area where their concern has been most intense � a provision giving federal agents broad power to obtain business records in national security investigations � Gonzales indicated he would support an amendment allowing recipients to challenge such subpoenas in court. “All of us have the same objective � ensuring the security of the American people while preserving our civil liberties,” Gonzales told the Senate Judiciary Committee April 5. “Our dialogue should be based on facts rather than exaggeration.” Several lawmakers in the Senate and in the House of Representatives � where Gonzales testified April 6 � commended the new attorney general for his diplomatic approach. “This is a departure from what we’ve heard before. It’s a good start,” said Sen. Russ Feingold (D-Wis.), the sole senator to vote against the Patriot Act in 2001. “I hope we can have the productive dialogue that’s been missing for so long.”
Four Contested Parts Of The Patriot Act
Section 215: ‘The Library Provision’
What it does: Allows federal agents to obtain orders in national security investigations for “tangible things” held by third parties, such as hospitals, libraries, and phone companies. Recipients cannot disclose that they have been subpoenaed. What the Justice Department says: AG Alberto Gonzales says he would support an amendment specifying that recipients of such orders can discuss them with an attorney and challenge them before the Foreign Intelligence Surveillance Court. What critics say: Sen. Richard Durbin (D-Ill.) says that Section 215 currently allows law enforcement sweeps that are too broad. In addition, the ACLU has filed a federal lawsuit challenging the constitutionality of Section 215.
Section 213: ‘Sneak-and-Peek Searches’
What it does: Permits delayed notice of search warrants when there is reasonable cause to believe that immediate notification would seriously jeopardize an investigation. It can be triggered in any type of criminal probe. What the Justice Department says: Delayed-notice warrants were not created by the Patriot Act. Instead, the act codified an existing practice. As with most other search warrants, prosecutors must first show probable cause that the target is involved in a crime. What critics say: Sen. Russ Feingold (D-Wis.) says Section 213 is too vague and allows potentially unlimited delays. Because the provision has been used primarily in nonterrorism investigations, some lawmakers feel it should be subject to tough scrutiny before reauthorization.
Section 206: ‘Roving Wiretaps’
What it does: Enables federal agents to tap multiple communication devices belonging to a single target in a terrorism investigation without going back to the Foreign Intelligence Surveillance Court for new authorization. What the Justice Department says: Roving, or multipoint, wiretaps have been available in the criminal context since 1986, but were unavailable under the Foreign Intelligence Surveillance Act (FISA) before passage of the Patriot Act. What critics say: Sen. Dianne Feinstein (D-Calif.) notes that Section 206 could violate citizens’ privacy by intercepting large volumes of innocent communications along with suspect ones. One legislative proposal would require surveillance applications to identify either the name of the target or the specific facilities to be tapped.
Section 218: ‘Tearing Down the Wall’
What it does: Modifies the standard for obtaining surveillance under FISA, making it easier to use evidence gathered under FISA in criminal proceedings. What the Justice Department says: The old standard for using FISA led to a culture in which law enforcement and intelligence agents were afraid to share information and coordinate. Tearing down this artificial wall is cited as the most important achievement of the Patriot Act. What critics say: The ACLU says the Patriot Act’s expansion of FISA is unconstitutional because it allows investigators to make an end run around Fourth Amendment protections. It wants criminal defendants investigated under FISA to have access to the information the government used to obtain a surveillance order.

The Patriot Act’s sunset clause � added shortly before the law’s passage in October 2001 � impacts 16 provisions of the law. Most are noncontroversial and are expected to be renewed with few, if any, changes. But at last week’s hearings, battle lines were quickly drawn over the powers that have caused the most concern, especially those that authorize investigators to access business records from third parties and to secretly execute search warrants. While the Justice Department may have a better salesman in Gonzales, critics say the administration still seems unwilling to consider substantive changes to the anti-terror law that would help protect Americans’ civil liberties. In fact, opponents point out, the administration is actually seeking to expand its investigative power by broadening the authority of the Federal Bureau of Investigation to issue administrative subpoenas, formal requests for documents that don’t require judicial approval. And so, despite Gonzales’ open-to-suggestions posture, some critics remain wary. “The tone of cooperation is certainly a welcome change. At the same time, the position of the Department of Justice is that there are a very few technical changes that they think are necessary and would be willing to support,” says Mark Agrast, senior vice president of the Center for American Progress, a liberal think tank. “Suffice to say, the advocacy community has a list of changes that is considerably longer.” Lawmakers hope to pass legislation reauthorizing critical pieces of the Patriot Act before Congress’ August recess, and the Judiciary committees of both chambers have scheduled a number of additional hearings over coming weeks. On April 12, the Senate Judiciary Committee will hear testimony behind closed doors from Valerie Caproni, general counsel of the FBI, and James Baker, head of the Justice Department’s Office of Intelligence Policy and Review. In May, the committee will hold an additional public hearing with testimony from academics and critics of the Patriot Act. PATRIOT GAMES In a January 2005 interview with Legal Times, Ashcroft said that he “would have liked to [have done] a better job of explaining the Patriot Act so that it would not have been the subject of so much misinformation and mistakes and controversy.” Ashcroft was an aggressive proponent of the act, but his combative style alienated lawmakers on both sides of the aisle who felt the AG was dismissive of criticism and unresponsive to requests for information. After making statements that seemed to equate the law’s critics with terrorists, his efforts to sell the act seemed to energize, rather than quell, the opposition. In July 2004, after a measure that would have revoked a key Patriot Act provision nearly passed the House of Representatives, the Justice Department redoubled its efforts to publicize the act’s benefits. It released a 30-page report that detailed law enforcement successes using the act. The law’s critics cranked up their own propaganda campaign, complete with bumper stickers reading “The Patriot Act? That’s SO 1984″ and “Dissent IS Patriotic.” But at last week’s hearings, much of the overheated rhetoric that once dominated debate over the act seemed to have been replaced by a reasoned and highly technical discussion of the law’s provisions. Timothy Lynch, director of the Project on Criminal Justice at D.C.’s Cato Institute, says that the sober deliberation indicates that the law’s sunset provision has been effective “It is really performing the function for which it was designed � to get Congress to seriously re-examine the provisions before they become a permanent part of our law,” Lynch says. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) made clear, however, that the administration wasn’t going to get a free pass. Specter also suggested that Patriot Act provisions not affected by the sunset clause would also be subject to scrutiny. He raised specific concerns about one such provision that permits federal agents to conduct searches without immediately notifying the target. Under Section 213 of the law, such searches � commonly referred to as sneak-and-peek searches � can be conducted when a judge finds reasonable cause to believe that immediate notification might place lives at risk, cause a suspect to flee prosecution, or otherwise jeopardize an investigation. Since the law’s enactment, the department has conducted 155 delayed-notification searches. Critics worry the provision makes it too easy to get a delayed-notice warrant and that it does not specify a time limit before an individual must be notified of a search. The Security and Freedom Ensured, or Safe, Act � a bipartisan proposal introduced in the Senate last week � would implement a seven-day limit for delaying notice, after which prosecutors would be forced to seek extensions. It would also narrow the circumstances in which such search warrants may be issued. LIBRARY CARDS Another element of the Patriot Act almost certain to see changes is Section 215, often referred to as the library provision. The provision permits terrorism investigators to obtain court orders for “tangible things” held by third parties � such as businesses, libraries, and hospitals. Though Gonzales said the authority has never been used to obtain library records, the possibility has led to opposition from librarians and has become a rallying point for civil libertarians. According to information released by the Justice Department last week, Section 215 has been used 35 times since September 2003 to obtain driver’s license records, public accommodations records, apartment leasing records, credit card records, and subscriber information from phone companies. Critics complain that the orders could be used to collect information on broad groups of innocent individuals and that there is insufficient judicial supervision. Specter pushed Gonzales and FBI Director Robert Mueller III to justify why Congress should keep language allowing agents to seize library records when Gonzales testified that it had never been used. Sen. Richard Durbin (D-Ill.) asked Gonzales what would prevent investigators from using Section 215 to access abortion records from an entire geographical area, if they believed that the wife of an alleged terrorist had undergone an abortion. “It is applied as narrowly as we can,” Gonzales said, adding that each order must be approved by a federal judge on the Foreign Intelligence Surveillance Court. “I quarrel with those who have characterized this as a rubber stamp.” The Surveillance Court � whose business it is to issue warrants in sensitive national security investigations � operates in near total secrecy. Civil libertarians maintain that the language of Section 215 gives judges very little discretion in issuing an order seeking the desired records. The Safe Act would insist that such orders be issued only when federal agents can demonstrate that the records being sought pertain directly to an alleged spy or terrorist. Even Gonzales acknowledged some problems with the provision and said he would support an amendment clarifying that recipients of Section 215 orders can consult attorneys and fight the orders in court. If the change is adopted, it would force the 27-year-old Surveillance Court to accept challenges from those outside government, something it has never done. Critics charge that the changes proposed by Gonzales do not reflect meaningful compromise, but simply reaffirm positions already taken by the department in a federal lawsuit brought by the American Civil Liberties Union challenging the constitutionality of Section 215. “[Gonzales] is basically seeing the handwriting on the wall that courts are not going to accept Section 215 as it is written,” says Lynch, of the Cato Institute. “They’ve realized this is something they are going to lose anyway. To me that’s not a substantive concession.” One Justice Department official speaking on the condition of anonymity says that though the modification proposed by Gonzales would not represent a dramatic shift in department practice, it should still reassure civil libertarians that the section will not be abused. “What we’re saying today is, ‘We interpret the statute this way, and we mean it,’ ” the official says. And even if it’s more style than substance, many lawmakers and outside advocates seemed to view Gonzales’ mild-mannered approach with optimism. “Gonzales’ attitude � which he’s expressed privately, as well as publicly � leads me to believe that we have a very good chance to get some of the reforms people think are necessary,” says David Keene, president of the American Conservative Union, part of a coalition of groups across the political spectrum that are seeking Patriot Act reform. “I would expect that when Congress finishes this process and reauthorizes the act, it will not be in exactly the same form as it was originally enacted. I think you will have some safeguards, will have some limits.” Keene adds, “Gonzales likes to refer to the changes as clarifications, and that’s just fine with me. They can call them peaches, for all I care.” Congressional correspondent T.R. Goldman contributed to this report. Vanessa Blum can be contacted at [email protected].

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