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October 5, 2009
/ 17 Tishrei 5770
Amid terror threat, Dems chip away at Patriot Act
You might not have heard, but some key parts of the nation's most important anti-terrorism law are set to expire in December. When the Patriot Act was originally passed in the days following the 9/11 terrorist attacks, Congress put time limits on three of its most far-reaching provisions: "Roving wiretaps," which allow investigators to keep up with suspects who use dozens of cell phones to avoid being traced; "business records" authority, which lets investigators ask a special national-security court for access to records of a suspect's dealings with private businesses; and the "lone wolf" provision, which allows investigators to track individual terror suspects even if they are not a member of a terrorist group, like al Qaeda. Congress renewed those provisions in 2005 and now must give them another four-year renewal, or they will disappear.
Some Democratic lawmakers have long wanted to weaken the act, and now, with big majorities in the House and Senate, they have their chance. But the renewal debate just happens to come at a time when recently uncovered domestic terror plots -- most notably the Denver shuttle bus driver and his colleagues caught with bomb-making materials and a list of specific targets in New York City -- are highlighting the very threats the act was designed to counter. Republicans are fighting to keep the law in its current form.
"These three provisions have been very important for the investigative agencies who are working every day to protect us from terrorist attack," says Sen. Jeff Sessions, ranking Republican on the committee. "Before the Patriot Act, terrorist investigators had far less authority to get records and documents than a DEA or an IRS agent."
Democrats have proposed a number of changes, all of which would weaken the law. Sen. Russell Feingold wants to do away with the "lone wolf" provision entirely. Sen. Patrick Leahy, the Judiciary Committee chairman, would make it more difficult for investigators to obtain business records. In addition, Leahy wants to return to legal standards that existed before September 11 regarding "national security letters," which are essentially subpoenas issued by the FBI and other security agencies. "They are going back to a September 10th mentality -- literally," says one GOP committee aide.
Even roving wiretaps, a widely accepted, common-sense feature of the Patriot Act, have come under question. At a Sept. 23 committee hearing, Sen. Al Franken, the newest member of the committee, challenged the constitutionality of such wiretaps, and in the process left an Obama Justice Department official -- who supports the law -- muttering in frustration.
That official, Assistant Attorney General David Kris, tried to explain to Franken that the law allows, and the courts have held, that investigators can wiretap a suspect based on a specific description of that suspect's activities, even if investigators don't know his name.
Franken, who pointed out that he is not a lawyer, was unimpressed. "That's what brings me to this," he said, pulling a copy of the Constitution from his coat pocket. He read aloud the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
Is the Patriot Act's roving wiretap provision consistent with the Constitution? Franken asked.
"I do think it is," Kris answered, "and I kind of want to defer to that other, third branch of government. The courts, in looking at -- "
"I know what they are," Franken joked, as the audience laughed.
Kris seemed taken aback. "This is surreal," he said under his breath.
Indeed it was. Maybe Franken was serious, and maybe he was just clowning around. But it didn't make for an enlightening exchange -- or bode well for the Patriot Act.
Now the committee is down to the business of crafting an actual bill to reauthorize the act. Republicans believe they can beat back some of the more sweeping changes, but they are under no illusions about the Democratic majority's power to chip away at the government's ability to fight terrorism.
"I'm very worried that we could end up weakening the act," says Sessions, "when we should be considering what we can do to make it stronger."
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