Congress Arrives at A Deal on Patriot Act

House and Senate negotiators reached a tentative agreement yesterday on revisions to the USA Patriot Act that would limit some of the government's powers while requiring the Justice Department to provide a better accounting of its secret requests for information on ordinary citizens. But the agreement would leave intact some of the most controversial provisions of the anti-terrorism law, such as government access to library and bookstore records in terrorism probes, and would extend only limited new rights to the targets of such searches.

The ACLU has a good rundown on some of the problems with the deal.

• The conference report makes virtually all of the expiring provisions of the USA PATRIOT Act (Patriot Act) permanent without including necessary changes to restore checks and balances.


• Personal records from libraries, bookstores, doctor’s offices, business, and other entities that are not connected to an international terrorist or spy could still be obtained using either a secret order under the Foreign Intelligence Surveillance Act (FISA) or a “national security letter” (NSL) that can be issued by an FBI official without any court oversight.


• Both secret FISA orders and NSLs would continue to contain a potentially permanent gag provision that bars a recipient from telling anyone (other than the recipient’s lawyer) that records have been obtained. The court must accept as “conclusive” the government’s assertion that disclosure of the order would harm national security.


• The bill allows sneak-and-peek searches under a broad standard not limited to terrorism cases. New 30 and 90 day time limits could be waived or renewed indefinitely, allowing such searches to continue to remain secret for weeks, months or even years.


• The bill still allows secret eavesdropping and secret search orders that do not name a target or a location, with only after-the-fact oversight by a court as to why the government believed a unknown target was in that location.


• Reforms the Patriot Act’s definition of “domestic terrorism” to provide that assets may not be forfeited except where the organization or individual is involved in a serious federal crime – a welcome change.


• Omits modest limits on a host of additional Patriot Act surveillance powers, all of which are made permanent.
  
• Although the final reauthorization bill includes the most extreme death penalty provisions sought by some, it would create a number of new crimes, including new death penalties, without adequate consideration by Congress.


• The bill allows the Justice Department, not federal courts, to determine that a state has a competent death penalty system, qualifying it for a relaxed set of procedural rules for federal habeas proceedings.


• Provides a new, seven year sunset on only three provisions out of scores of new surveillance powers obtained by the government in the Patriot Act. The bill provides an excessively long, seven-year sunset on only three specific provisions, despite broad bipartisan support in the House and Senate for a shorter, four-year sunset period.

Congress Arrives at A Deal on Patriot Act
Limits Would Spare Some Controversial Government Powers
By Jonathan Weisman
Washington Post Staff Writer
Thursday, November 17, 2005; A01

House and Senate negotiators reached a tentative agreement yesterday on revisions to the USA Patriot Act that would limit some of the government's powers while requiring the Justice Department to provide a better accounting of its secret requests for information on ordinary citizens.

But the agreement would leave intact some of the most controversial provisions of the anti-terrorism law, such as government access to library and bookstore records in terrorism probes, and would extend only limited new rights to the targets of such searches.

For President Bush, renewal of the act would provide a boost as he looks to restore his image as a strong commander in chief in combating terrorism. And Democrats said yesterday that the administration largely got what it wanted -- a major break after lawmakers challenged the White House in recent days on the conduct of the Iraq war, budget policies and tax cuts.

The deal would make permanent 14 Patriot Act provisions that were set to expire at the end of the year. Three other measures -- including one allowing law enforcement agents access to bookstore and public library records -- would be extended for seven years, or three years longer than the Senate had agreed to. The House initially extended the provisions for 10 years but later voted to accept the Senate's four-year extension.

Also extended for seven years is a provision allowing roving wiretaps that follow an individual who may use multiple means of communication, rather than targeting a single phone line. The agreement also extends for seven years a provision of a separate intelligence law passed last year that allows federal investigators to track an individual not connected to a foreign government but suspected of operating as a "lone wolf" terrorist.

The compromise would weaken a block of House-approved death penalty provisions that had elicited concern in the Senate and in legal circles. In the event that a jury could not agree to impose the death penalty on a convicted terrorist, House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) had hoped to empower prosecutors to impanel a new jury. The deal also excludes a House proposal to allow a death penalty for terrorist offenses that "create grave risk of death."

The agreement does extend the federal death penalty to those who knowingly transport materials used in a deadly terrorist attack, those who help plot a deadly attack on a mass-transit system, and those who participate in a deadly attack on ships and maritime facilities.

Republicans and Democrats said the agreement is a victory for Sensenbrenner, who defended the expanded government powers enacted after the Sept. 11, 2001, attacks. Civil libertarians and liberal Democrats lamented the deal as another blow to individual rights. And three Democratic senators and three GOP senators declared the agreement unacceptable last night.

"Is Congress standing up to the president? No, not on this one," said Rep. Jerrold Nadler (N.Y.), a House Judiciary Committee Democrat.

The agreement, which could go to final votes in the House and Senate before the end of the week, is Congress's first effort to revise the national security measure that became law just weeks after the Sept. 11 attacks. During last year's presidential campaign, the Patriot Act was elevated to a major political issue, showcased by Bush as a sign of strength in the face of terrorism but maligned by many Democrats as an abuse of power. Hundreds of local governments have passed resolutions decrying the law as an infringement of civil liberties.

When Congress turned to reauthorizing the measure this year, there were bipartisan calls for major changes. House and Senate negotiators have agreed to limit the government's powers in some areas, while rebuffing Bush administration requests for new subpoena powers.

But on balance, the compromise sides with a stronger government hand when terrorism investigations clash with civil liberties concerns.

But Congress does not look ready to hand Bush all of the sweeping powers it was willing to grant in 2001. Negotiators refused to back the administration's request for administrative subpoenas, which would have expanded the government's power to subpoena records without the approval of a judge or grand jury in terrorism investigations. Senate Intelligence Committee Chairman Pat Roberts (R-Kan.) called that "a serious mistake," saying the government already has such powers to investigate non-security issues such as Medicare fraud.

"We can do it for a dirty doctor but not a dirty bomber," he said.

While the government would retain access to library, bookstore and business records, the FBI would face new limits on the retention and dissemination of such information.

The compromise also places new controls on the FBI's use of "national security letters," which require companies to provide private information about their customers and to keep the request secret. The Patriot Act allowed the FBI to use such letters on any citizen it deemed relevant to a national security investigation, even if the target is not suspected of any wrong-doing.

A Nov. 6 article in The Washington Post revealed that loosened restrictions in the Patriot Act helped boost the annual use of such letters 100-fold, to more than 30,000 a year from about 300 before the Sept. 11 attacks.

Under the compromise, the Justice Department would have to disclose the number of requests it made for information concerning different targeted people in the United States, but not including the communications subscriber information that makes up the bulk of such requests.

Those who receive such letters would be allowed to consult a lawyer and challenge the requests under a new judicial review process.

But critics said those controls were more cosmetic than real. A recipient wishing to reveal only the receipt of a security letter would have to prove that disclosure would not harm national security or diplomatic relations or endanger any lives or public safety, while the government can merely assert disclosure would have those effects.

Staff writer Dan Eggen contributed to this report.
© 2005 The Washington Post Company
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/16/AR2005111601047.html