Senator Russ Feingold, a Wisconsin Democrat, is on a collision course with President George W. Bush over how much leeway should be given to intelligence agencies and law enforcement to wage their "war on terror."
Feingold has introduced three bills to limit provisions of the USA PATRIOT Act, legislation passed shortly after the Sep. 11, 2001 attacks that curtails civil liberties in the interest of cracking down on "terrorist" activities.
President Bush is pressing Congress to renew the controversial law without change.
Feingold’s proposals would limit authority to delay notice of search warrants, restrict government access to library, bookseller, and other personal records for foreign intelligence and counterintelligence purposes, and clarify conditions for computer surveillance.
Feingold, also the co-author with Senator John McCain of Arizona of a landmark campaign finance reform law, told the Senate, "I have many concerns with the PATRIOT Act. I am not seeking to repeal it, in whole or in part. My colleagues and I are only seeking to modify…provisions that pose serious potential for abuse."
"The privacy of law-abiding Americans is at stake, along with their confidence in their government," he said earlier this month. "Congress should act to protect our privacy and reassure our citizens." Meanwhile, Bush, speaking at a Justice Department ceremony last week, said the PATRIOT Act has been "vital to our success in tracking terrorists and disrupting their plans." He urged lawmakers to renew elements of the law that will expire at the end of this year. "We must not allow the passage of time or the illusion of safety to weaken our resolve in this new war," Bush said. Before he left office, Attorney General John Ashcroft referred to the PATRIOT Act as "invaluable – not only to save lives from terrorists, but to save children from kidnappers and pedophiles."
But Lisa Graves, senior legislative strategist for the American Civil Liberties Union (ACLU), a major advocacy group, takes a very different view.
She told IPS, "Sen. Feingold’s bills will help shape the debate on the most troubling aspects of the PATRIOT Act, including secret searches of people’s homes and also searches of the books they buy or borrow without showing any specific facts warranting such intrusions."
In response to the president’s push to make the entire PATRIOT Act permanent without any changes, she added "these bills are part of the growing momentum across the political spectrum to fix the PATRIOT Act to bring it in line with the Constitution’s checks and balances – it makes sense to review the act regularly to guard both our safety and our liberty."
Feingold’s proposals address three of the most controversial sections of the legislation.
Section 213, sometimes referred to as the "delayed notice search provision" or the "sneak and peek provision," authorizes the government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises.
Sections 215 and 505 give the government access to library, bookseller, medical, and other sensitive, personal information under the Foreign Intelligence Surveillance Act (FISA) and related foreign intelligence authority.
Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking.
Supporters and critics of the legislation agree that the USA PATRIOT Act gave law enforcement sweeping new powers to investigate and prosecute terrorism-related as well as more garden-variety criminal activities.
Some of its provisions are due to expire this year, and the White House and most Republicans have been pressing to expand the law rather than modify it.
Feingold was the only senator who voted against the legislation. With both the House of Representatives and the Senate controlled by Republicans, his latest amendments face an uphill battle.
However, the liberal senator is not alone. Many civil liberties and human rights groups have vigorously opposed sections of the law, particularly those targeted in the Feingold legislation.
Feingold’s proposal would narrow the circumstances in which a delayed warrant can be granted to the following: potential loss of life, flight from prosecution, destruction or tampering with evidence, or intimidation of potential witnesses.
"The ‘catch-all provision’ allowing a secret search when serving the warrant would seriously jeopardize an investigation or unduly delay a trial can too easily be turned into permission to do these searches whenever the government wants," Feingold said.
It would also require a public report on the number of times that section 213 is used, the number of times that extensions are granted, and the type of crimes being investigated.
Feingold’s second bill, which was co-sponsored by nine other democratic senators, deals with Sections 215 and 505 of the law.
"The current law allows the FBI broad, almost unfettered access to personal information about law-abiding Americans who have no connection to terrorism or spying," he said.
"The FBI could serve a subpoena on a library for all the borrowing records of its patrons or on a bookseller for the purchasing records of its customers simply by asserting that they want the records for a terrorism investigation. Since the passage of the PATRIOT Act, librarians and booksellers have become increasingly concerned by the potential for abuse of this law."
"The American people do not know how many or what kind of requests federal agents have made for library records under the PATRIOT Act. The Justice Department refuses to release that information to the public," he added.
The Feingold proposal would restore a pre-PATRIOT Act requirement that the FBI make a factual, individualized showing that the records sought pertain to a suspected terrorist or spy while leaving in place other PATRIOT Act expansions of this business records power.
Section 217, Feingold said, "was intended to target only a narrow class of people – unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant."
Section 217 is one of the provisions due to "sunset" at the end of 2005.
