'New' Patriot Act's familiar look: Even most contentious provisions likely to be renewed with little change

The Star-Ledger
Sep. 27, 2005

WASHINGTON -- As early as tomorrow, House and Senate negotiators will begin deliberations to renew parts of the USA Patriot Act scheduled to expire at year's end.

As they did four years ago with the original act, lawmakers will hammer out details behind closed doors. And just like four years ago, President Bush will sign the bill into law, declaring it another step in America's war on terrorism.

In July, the House and Senate passed separate bills, and only minor differences still need to be reconciled. But the fight over the legislation began almost the moment the original measure became law just 45 days after the 9/11 attacks. It was expected to be a defining debate, with Congress split between those who feared the bill encroached too far on traditional civil liberties and those who believed it didn't go far enough to protect the nation.

There was debate, but it was mainly background noise. And at this point, it appears most of the Patriot Act will survive untouched, granting civil libertarians few, if any, concessions.

Because of the secrecy and lack of oversight that characterizes much of the act, however, few lawmakers or legal scholars expect questions about its scope and constitutional merit to disappear anytime soon. Law enforcement, meanwhile, continues to seek expanded powers to cope with potential threats.

Though it was nothing like the lightning-fast passage of the original bill, Congress made quick work of the renewal package. Similar versions passed the House and Senate five months before the Dec. 31 deadline.

"We had to make sure we got it done in plenty of time," said Rep. Dan Lungren (R-Calif.), a member of the House Judiciary Committee, which was responsible for drafting the bill in the lower chamber.

"I feel very confident I can tell people back home or anywhere in the country that we did a thorough review of the Patriot Act both in terms of the statute itself and in terms of its application," Lungren said.

'AN UTTERLY FALSE IMPRESSION'
The swift legislative action was not welcomed by all. Lisa Graves, the lead lobbyist on the bill for the American Civil Liberties Union, said the administration employed some of the same tactics it used in 2001.

"The implication," she said, was "that if Congress didn't act quickly, the government wouldn't have any power to deal with terrorism. That was just an utterly false impression because most of the Patriot Act was permanent already," she said.

There are more than 150 sections in the Patriot Act, but only 16 will expire this year without congressional renewal. Two of those have drawn the most focused criticism from civil libertarians: Section 215, often called the "library provision," which allows federal investigators with a court order to seize books, records, papers and other documents from doctors, stores and other business, including libraries; and Section 206, which permits "roving wiretaps" that target individuals, not just a single phone number.

The House bill would renew those two provisions, subject to a review in 10 years, while making the other 14 provisions permanent. The Senate measure would subject the two disputed sections to a review in four years, and make the other 14 permanent.

The Senate bill goes a step further, by addressing components of the law that do not expire; it would allow court challenges to certain warrants issued by the secret Foreign Intelligence Surveillance Court, and require that the subject of so-called "sneak-and-peek" searches be notified within seven days.

The administration had hoped to have all 16 of the provisions made permanent.

"They just kept saying they didn't want any changes, no changes at all," said Rep. Jeff Flake (R-Ariz.) of the Judiciary Committee. "I've come to understand the Department of Justice; they'll take any tools you can give them. Their job is to catch terrorists, our job is to balance civil liberties as well. So we have more of a dual role than they do."

HOPE FOR BIPARTISANSHIP FADES
When hearings before the Judiciary Committee began early last spring, some House Democrats held out hope the panel's Republican leadership might be open to negotiation. After all, during the 2001 debate the committee unanimously endorsed an early version of the act that included broader civil liberty protections.

But as the committee's work progressed, it became clear to members that there would be no bipartisan bill this time.

Rep. Jerrold Nadler (D-N.Y.), a member of the panel, complained that the leadership of the committee refused to give Democrats any say in the process.

The committee was split along party lines when it sent a bill to the full House. Then, on July 21, the House approved the measure on a largely party-line vote of 257-171.

On that same day, the Senate Judiciary Committee passed its bill by a unanimous vote, bringing along even Sen. Russell Feingold (D-Wis.), the only member of the Senate to vote against the Patriot Act in 2001.

Feingold echoed the feelings of many when he said he would support the bill as "a step in the right direction."

The Senate bill was approved virtually without opposition, but the process in the upper chamber provided some scary moments for privacy advocates. With the backing of the administration, the Senate Select Committee on Intelligence quietly adopted a bill that would have not only made the entire Patriot Act permanent, but also would have given authorities new investigative tools.

Among other things, the measure drafted by the intelligence committee included a provision that would allow federal investigators to write their own subpoenas without judicial review.

These so-called "administrative subpoenas" were immediately attacked as "flying in the face of the Fourth Amendment" and its guarantee of protection against unreasonable search and seizure. Faced with opposition from members of both parties, the proposal quickly disappeared.

Meanwhile, critics of the Patriot Act, led by Sens. Dick Durbin (D-Ill.), Larry Craig (R-Idaho) and Feingold, offered up the Security and Freedom Enhancement Act.

The so-called SAFE Act would have limited roving wiretaps by requiring authorities to identify the target of the surveillance. It would also have strictly curtailed the use of "sneak-and-peek" searches; banned federal access to library records in most cases; and limited the seizure of personal records from doctors, banks, businesses and libraries to cases involving foreign terrorists, agents or spies. The proposal went nowhere, but proponents have pledged to revive it.

Despite differences between the two bills, many of the Patriot Act's most significant provisions never faced serious opposition. Most notably, language that allows government investigators to share information on terrorism cases -- breaking down the "wall" between intelligence and law enforcement agencies that was cited by the 9/11 commission last year as a hurdle to disrupting the terrorist plot -- went untouched.

"It's not as if Democrats wanted to toss the entire act. We wanted to make improvements to things that have proven to be questionable," said Rep. Zoe Lofgren (D-Calif.), a member of the Judiciary Committee. "There's general agreement on a lot of these provisions."

Homeland Security Director Michael Chertoff agreed: "Once you get past some of the overheated discussion that you had at various points in time and actually get into the details, I think it makes a lot of sense to renew it and that is why it is getting support."