Cooler Heads Review PATRIOT Act in Congress

Disclosure of a 75 percent increase in secret wiretaps and "sneak and peek" searches since 2000 is likely to provide ammunition for civil liberties groups determined to modify the USA PATRIOT Act when Congress begins two months of debate on the law Tuesday.

The USA PATRIOT Act was hurriedly enacted shortly after the Sept. 11, 2001 terrorist attacks on New York and Washington. It gave federal law enforcement agencies sweeping new surveillance and detention powers.

Parts of the law are due to expire at the end of this year, and President Bush has called on Congress to renew the law in its entirety.

Last week, the administration reported to Congress that in 2004 the government requested and won approval for a record total of 1,754 special warrants for secret wiretaps and searches of suspected terrorists and spies.

Last year’s approved warrants were only slightly higher than the 1,724 approved in 2003. In 2000, there were 1,003 warrants approved under the 1978 Foreign Intelligence Surveillance Act.

Warrants of this kind are authorized by the USA PATRIOT Act. However, the FBI also uses the warrants in "plain vanilla" criminal investigations that have nothing to do with terrorism.

The investigations are authorized by a highly secretive U.S. court established under the Foreign Intelligence Surveillance Act of 1978 (FISA). The warrants have been used to break into homes, offices, hotel rooms, and cars, and to install hidden cameras, search luggage, eavesdrop on telephone conversations, intercept e-mails, and gain access to safe deposit boxes.

The FBI does not release details of its "sneak and peek" activities, so little is known about them outside the agency. Even the relevant committees of Congress are not informed except in the annual reports the FBI is required to submit.

And members of Congress have complained that the information they receive is too general.

This session of Congress will undoubtedly demand more detail, but if past performance is a barometer of the future, the FBI will be reluctant to make any disclosures in hearings open to the public.

However, some facts are known. For example, the FBI used a special warrant last year to search the home of Portland, Ore., attorney Brandon Mayfield.

Mayfield was jailed when the FBI said his fingerprint was found on a bag of detonators near the scene of train bombings in Spain that killed 191 people in March 2004. He was released after the FBI admitted it had made a mistake.

Mayfield is suing the government, claiming the investigation and arrest violated his civil rights.

The USA PATRIOT Act was passed in 2001, with little opportunity for debate. Only one U.S. senator, Russell Feingold, a Democrat from Wisconsin, voted against the law, which gave security and law enforcement authorities broad new powers.

Feingold has already introduced legislation that would modify what he sees as the law’s worst excesses.

When Congress passed the bill, it recognized it was treading on untested territory, and voted to let a number of surveillance and wiretapping provisions expire (or "sunset") this year. That is why the debate over renewal or modification of these provisions is likely to present the Bush administration with one of its fiercest congressional battles.

David Cole, a law professor at Georgetown University and a well-known civil libertarian, told IPS, "Everyone concedes that the PATRIOT Act was enacted at a time that made it literally impossible to consider it carefully."

"The impending sunset of some of its provisions invite us to give it the consideration it is due. Unfortunately, the administration seems not to want to admit that it made any mistakes, here or elsewhere, and seems unwilling to give it a sober second look.

"The PATRIOT Act needs amendments to bring it into conformity with the Constitution, to enhance checks and balances, and to protect privacy," he concluded.

However, Bush, Attorney General Alberto Gonzales and Republican leaders in Congress have asked for renewal of the bill in its entirety. The battle begins Tuesday with the testimony of Gonzales, who has recommended that the law be expanded. He will be the first witness in a series of House and Senate hearings.

Most Republicans and a variety of right-leaning think tanks such as the Heritage Foundation endorse the administration position.

In opposition are most Democrats, some Republicans, and an array of civil libertarian groups that span the political spectrum from left to right, conservatives to liberals.

Among those pushing for modification of provisions they say violate constitutionally guaranteed civil liberties and privacy rights is an unusual coalition of left- and right-leaning groups known as Patriots to Restore Checks and Balances.

The group is led by former legislator Bob Barr, a conservative Republican from Georgia. Its membership includes, among others, the liberal American Civil Liberties Union, the right-leaning American Conservative Union, Americans for Tax Reform, and Free Congress Foundation.

The group has written to the president, urging him "to reconsider your unqualified endorsement of the most intrusive, unchecked powers temporarily granted by the act."

Barr says the coalition supports the overall law, but is demanding proof that the provisions up for renewal are effective and do not intrude on Constitutional rights. It is also calling for removal of other powers granted under the act not up for reauthorization. These include repeal of the so-called sneak-and-peek provision.

"At the core," Barr told IPS recently, "liberals and conservatives alike share an interest in protecting individual liberties, especially those embodied in the Bill of Rights, against government efforts to take them away."

According to Marc Rotenberg, executive director of the Electronic Privacy Information Center, a public interest research group, "The campaign against the PATRIOT Act is about more than privacy and civil liberties. It is about the need to preserve checks and balances within the U.S. government."

"The law transferred significant power from the judiciary to the executive branch of government. Now it is time to restore the balance and reestablish oversight of the government’s conduct."

Author: William Fisher

William Fisher writes for Inter Press Service.