Bush Seeks to Expand Access to Private Data
Sun Sep 14, 2:57 PM ET
story.news.yahoo.com
By ERIC LICHTBLAU The New York Times
WASHINGTON, Sept. 13 For months, President Bush advisers have assured a skittish public that law-abiding
Americans have no reason to fear the long reach of the antiterrorism law
known as the Patriot Act because its most intrusive measures would
require a judge's sign-off.
But in a plan announced this week to expand
counterterrorism powers, President Bush
adopted a very different tack. In a three-point
presidential plan that critics are already
dubbing Patriot Act II, Mr. Bush is seeking
broad new authority to allow federal agents
without the approval of a judge or even a
federal prosecutor to demand private records
and compel testimony.
Mr. Bush also wants to expand the use of the
death penalty in crimes like terrorist financing,
and he wants to make it tougher for
defendants in such cases to be freed on bail
before trial. These proposals are also sure to
prompt sharp debate, even among
Republicans.
Opponents say that the proposal to allow
federal agents to issue subpoenas without the
approval of a judge or grand jury will
significantly expand the law enforcement powers granted by Congress
after the attacks of Sept. 11, 2001. And they say it will also allow the
Justice Department ) after months of growing friction
with some judges to limit the role of the judiciary still further in terrorism
cases.
Indeed, Senator Arlen Specter, Republican of Pennsylvania, who is
sponsoring the measure to broaden the death penalty, said in an
interview that he was troubled by the other elements of Mr. Bush's plan.
He said he wanted to hold hearings on the president's call for
strengthening the Justice Department's subpoena power "because I'm
concerned that it may be too sweeping." The no-bail proposal concerns
him too, the senator said, because "the Justice Department has gone
too far. You have to have a reason to detain."
But administration officials defended Mr. Bush's plan. Even though the
administration is confident that the United States is winning the war on
terrorism, they said, they have run into legal obstacles that need to be
addressed.
"We don't want to tie the hands of prosecutors behind their backs," said
Mark Corallo, a Justice Department spokesman, "and it's our
responsibility when we find weaknesses in the law to make suggestions
to Congress on how to fix them."
In announcing his plan on Wednesday, Mr. Bush said one way to give
authorities stronger tools to fight terrorists was to let agents demand
records through what are known as administrative subpoenas, in order to
move more quickly without waiting for a judge.
The president noted that the government already had the power to use
such subpoenas without a judge's consent to catch "crooked doctors" in
health care fraud cases and other investigations.
The analogy was accurate as far as it went, but what Mr. Bush did not
mention, legal experts said, was that administrative subpoenas are
authorized in health care investigations because they often begin as civil
cases, where grand jury subpoenas cannot be issued.
The Justice Department used administrative subpoenas more than 3,900
times in a variety of cases in 2001, the last year for which data was
available. The subpoenas are already authorized in more than 300 kinds
of investigations, Mr. Corallo said.
"It's just common sense that we should be able to use this tool against
terrorists too," he said. "It's not a matter of more power. It's the fact that
time is of the essence and we may need to act quickly when a judge or
a grand jury may not be available."
Officials could not cite specific examples in which difficulties in obtaining
a subpoena had slowed a terrorism investigation.
But Mr. Corallo gave a hypothetical example in which the F.B.I. received
a tip in the middle of the night that an unidentified terrorist had traveled to
Boston. Under Mr. Bush's plan, the F.B.I., rather than waiting for a
judicial order, could subpoena all the Boston hotels to get registries for
each of their guests, then run those names against a terrorist database
for a match, he said.
Attorney General John Ashcroft and other senior
officials, defending the Patriot Act in recent speeches and interviews,
have emphasized that judges must sign off on the investigative tools that
have caused the most public protest, like searching library records or
executing warrants without immediately notifying the target.
One section of the Justice Department's new Patriot Act Web site,
lifeandliberty.gov, for instance, says the law "allows federal agents to
ask a court for an order to obtain business records in national security
terrorism cases."
The administration sought to expand the use of administrative
subpoenas in the original Patriot Act in 2001, but Democrats protested
and succeeded in killing it.
Civil rights lawyers, defense advocates and some
former prosecutors say they see no need to broaden the
Justice Department's powers so markedly. Under
current law, they say, terrorism investigators can
typically get a subpoena in a matter of hours or
minutes by going through a judge or a grand jury.
"The fundamental issue here," Nicholas M. Gess, a
former federal prosecutor and a senior aide to the
former attorney general Janet Reno ,
said, "is that at a time of such concern over civil
liberties, there's good reason to have a judge looking
over the government's shoulder."
Mr. Bush's proposal, he said, "means that there are no
effective checks and balances. It's very worrisome."
A second proposal by Mr. Bush would strengthen the
government's hand in keeping defendants charged with
terrorism-related crimes in jail pending trial.
But critics like Senator Edward M. Kennedy, Democrat
of Massachusetts, said they believed the idea also
posed risks of limiting the discretion of federal judges
and giving the Justice Department too much power.
Mr. Bush's proposal would require judges to presume
that defendants in terrorism-related offenses should
not be allowed out on bail, unless the defense can
persuade the judge otherwise. The proposal defines
terrorism to mean acts like murder, kidnapping or
computer attacks intended to "influence or affect the
conduct of government by intimidation or coercion, or to
retaliate against government conduct."
Such no-bail restrictions, which effectively shift the
burden of proof from prosecutors to the defense in
determining whether a defendant should be locked up,
are already in place for certain narcotics trafficking
offenses and other charges.
"A suspected terrorist could be released, free to leave
the country, or worse, before the trial," Mr. Bush said.
"This disparity in the law makes no sense. If dangerous
drug dealers can be held without bail in this way,
Congress should allow for the same treatment for
accused terrorists."
Justice Department officials were angered this
summer when judges in Alexandria, Va., freed on bail
four men who were charged with supporting Kashmir
terrorists. The judges said they were
not persuaded the men posed a clear danger or a flight
risk.
Despite Mr. Bush's concerns, Justice Department
officials said they knew of no specific instances in
which a person charged in a terrorism case had fled
after being granted bail. And critics said they were
unconvinced the current laws needed fixing.
The third element of Mr. Bush's plan would expand the
list of terrorism-related crimes eligible for death.
Suspects like Zacarias Moussaoui, accused of taking
part in the 9/11 conspiracy, already face the prospect
of the death penalty for the most serious terrorist
offenses.
But Mr. Specter, who said he had worked on the issue
for months before the White House asked him to
sponsor legislation, said his measure would allow
execution for "gateway" crimes like terrorist financing,
even if the defendant does not carry out the attack.
"The financiers are really the principal culprits," he
said.
The proposal would also extend the death penalty to a
number of other criminal activities, including sabotage
of a defense installation or a nuclear facility. |
