In Ohio, Bush urges making the Patriot Act permanent
President doesn't mention provision to give FBI broad subpoena power
Baltimore Sun | June 10, 2005
President Bush pressed Congress yesterday to make permanent the broad police powers created four years ago under the USA Patriot Act, saying it had "accomplished exactly what it was designed to do: It has protected American liberty and saved American lives."
Left unmentioned in the president's speech to a group of cadets at an Ohio police academy was a little-discussed plan to expand the sweeping counterterrorism legislation to give FBI agents unprecedented access to a variety of personal records without having to get a judge's approval.
The plan has emerged quietly in recent weeks and touched off fierce opposition from civil liberties activists, who had hoped to scale back some of the far-reaching surveillance tools, passed as a swift response to the Sept. 11 attacks, when they came up for renewal this year.
"It's an enormous power grab by the administration," Lisa Graves, senior counsel for the American Civil Liberties Union's legislative strategy division, said yesterday.
Separately yesterday, a new report by a New York University law professor who has closely studied the Patriot Act said the existing law should include greater accountability by law enforcement to protect against unnecessary personal invasions - and wasted efforts on the part of investigators.
The proposal to further expand FBI powers cleared the Senate Intelligence Committee in an 11-4 vote this week. The proposal, crafted partly in closed-door committee meetings, included three key provisions that have raised alarms:
The legislation would give the FBI the right to demand a variety of records - such as library, business or medical records - without first obtaining a judge's approval. Instead, so-called administrative subpoenas could be written by agents to seize records from banks, for instance, or Internet service providers.
The bureau would gain the authority to force the U.S. Postal Service to turn over photocopies of the outside of any mail sent by or addressed to people connected to national security investigations. It also could obtain more information through Internet surveillance.
Investigators probing foreign-based terrorism suspects also would be allowed to obtain court orders for wiretaps and searches, even if the purpose was only to pursue a criminal case. Current law requires that the information the bureau is seeking be tied to a foreign intelligence investigation.
FBI officials have defended the plan to allow administrative subpoenas for records, which has drawn the most attention, by arguing that time is of the essence in terrorism cases. But outside legal analysts and even one of the bureau's top lawyers have been unable to point to an instance where a terrorism investigation has been slowed by agents having to seek a judge's approval before serving search warrants.
"Can we show you that, because we did not get the record, a bomb went off? We cannot," Valerie Caproni, the FBI's general counsel, told the Senate Intelligence Committee last month under questioning by Democratic lawmakers.
Michael Greenberger, a former top counterterrorism official in the Justice Department under Attorney General Janet Reno, said it is extraordinarily rare for a judge not to issue a search warrant - and swiftly - when presented with compelling evidence from investigators.
"Basically, if you have a valid reason for doing a search, judges are going to grant you a warrant," Greenberger, now a law professor at the University of Maryland, said yesterday. "It's very worrisome that they want to circumvent a neutral tribunal who can make some kind of judgment about whether they have probable cause in doing those searches."
The recent push on the Patriot Act has come after months of relative silence on the issue from Bush - who talked frequently about preserving the legislation during his re-election campaign, which focused heavily on national security.
Since January, the president's poll numbers on his handling of terrorism issues have declined. An ABC News/Washington Post poll of 1,002 adults conducted June 2 to Sunday showed the country almost evenly split - with 50 percent approving of the way Bush is handing the campaign against terrorism and 49 percent disapproving. The poll had a margin of error of 3 percentage points.
The president's approval rating on the issue has dipped that low once before since the weeks after the Sept. 11 attacks, when the same poll showed that Americans were virtually unanimous in approving of his handling of terrorism issues.
Speaking yesterday at the Ohio Patrol Training Academy, Bush credited Patriot Act provisions that facilitated better information sharing among law enforcement agencies with helping to catch a Columbus man, Iyman Faris, who was accused of plotting to destroy a New York bridge and an Ohio shopping mall.
"The problem is, at the end of this year 16 critical provisions of the Patriot Act are scheduled to expire," Bush said. "Some people call these sunset provisions. That's a good name, because letting those provisions expire would leave law enforcement in the dark. All 16 provisions are practical, important, and they're constitutional. Congress needs to renew them all."
Wisconsin Sen. Russell D. Feingold, a Democrat and the only senator to vote against the Patriot Act in 2001, said Bush had promoted only those parts of the law that are not controversial.
"He once again ignored bipartisan concerns about the Patriot Act and presented a false choice to the American people - that we have to reauthorize the Patriot Act without any changes or leave our country vulnerable to terrorist attacks," Feingold said in a statement yesterday.
In a report released yesterday by the Century Foundation, New York University law professor Stephen J. Schulhofer argued that much of the legislation was needed, but he said changes are needed to make the law more narrowly tailored and to ensure greater accountability among law enforcement.