Patriot Act Expansion a Hot Debate
By Frank Davies
The Miami Herald
Wednesday 25 May 2005
Democrats were wary as the White House sought to expand some of the powers of the government under the Patriot Act.
Washington - Debate over the Patriot Act heated up Tuesday as the Senate Intelligence Committee prepared a bill to renew the act's powers and add broader authority for the FBI to search private and business records without a judge's approval.
Valerie Caproni, general counsel for the FBI, told the committee that administrative subpoenas -- often used by regulatory agencies to secure records -- should be a tool that terrorism investigators could use ``when time is of the essence."
Such subpoenas, also used in healthcare fraud and child-pornography cases, don't need judicial approval, though they can be challenged by the recipient -- often a business, such as a bank or hospital, that holds private records.
The expanded search and surveillance powers permitted by the USA Patriot Act, which was enacted six weeks after the Sept. 11 terrorist attacks, have required judicial review in advance.
Civil liberties groups charged that administrative subpoenas -- long on the FBI's wish list for intelligence cases -- represent a dangerous, unwarranted expansion of power.
Several Democrats pressed Caproni on whether the lack of administrative subpoenas had hindered any terrorism investigations.
"It does hamper us," Caproni said.
``Can we show you, because of delays, that a bomb went off? No, but it could happen tomorrow. It could."
Sen. Dianne Feinstein, D-Calif., was skeptical: ``This is a very broad power, with no check on that power. It's carte blanche for a fishing expedition."
Feinstein and others said that while the argument for using such subpoenas in terrorism investigations sounded reasonable -- they're already used in criminal and regulatory cases -- the secret, open-ended nature of intelligence work was very different.
Sen. Pat Roberts, R-Kan., the intelligence committee chairman, said he was sympathetic to the FBI's request and had included the new power in a bill reauthorizing the Patriot Act.
If Congress doesn't move to action by the end of the year, 16 provisions of the act will expire.
The new authority faces resistance, especially on the judiciary committees in the Senate and House of Representatives, which also have jurisdiction over the Patriot Act.
Those two committees plan to craft their own reauthorization bills, possibly by the end of June
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Democrats Wary of Patriot Act Expansion
The Associated Press
Tuesday 24 May 2005
Washington - Democratic senators expressed skepticism of new powers the Bush administration is seeking in federal terrorism investigations, including authority to read the outside of mailed envelopes and to subpoena records without judicial approval.
During a Senate Intelligence Committee hearing Tuesday about renewing and expanding the 2001 Patriot Act, FBI General Counsel Valerie Caproni said the bureau needs ways to get information faster in national security investigations.
One delay on the wrong case could be catastrophic, she said, but she didn't offer specifics about where existing powers have been inadequate since the attacks of Sept. 11, 2001. Instead, she often leaned on hypothetical examples, frustrating Democrats.
"Can we show you a precise example of where, because of a delay, a bomb went off? We cannot," Caproni said. "But could it happen tomorrow? It could."
Portions of the Patriot Act -- signed into law six weeks after the Sept. 11 attacks -- are set to expire at the end of 2005. In drafting legislation to make those provisions permanent, Senate Intelligence Committee Chairman Pat Roberts, R-Kan., is also working to expand the FBI's authorities in terrorism and espionage cases.
Democrats, including the panel's vice chairman, weren't immediately sold.
"What is the problem with the Department of Justice's and the FBI's current authority?" asked Sen. Jay Rockefeller of West Virginia.
Roberts' draft bill, which has not yet been formally introduced, was publicly distributed for the first time Tuesday. The intelligence panel plans to edit his legislation in closed session Thursday. Sen. Ron Wyden, D-Ore., asked Roberts to open the session to the public.
Other committees that will play a role in crafting the legislation have discussed whether to impose limits, rather than expand the powers of the Patriot Act.
Following a proposal President Bush sought in 2003, Roberts' draft bill calls for giving the FBI expanded subpoena power that would enable agents involved in terror investigations to obtain records, electronic data or other evidence without approval from a judge or grand jury.
Democrats and some privacy and civil-rights activists have questioned whether there will be enough checks on the bureau. Yet advocates counter that such subpoenas are available in certain types of criminal cases, including health care fraud and child pornography.
In those circumstances, Caproni said, "the possibility of the detrimental effect of delay are less than in a terrorism case."
But Sen. Dianne Feinstein, D-Calif., is worried the new subpoena power will give the FBI "carte blanche" to go on fishing expeditions. Sen. Evan Bayh, D-Ind., wanted to get a better sense of the scope of the problem now.
"We have no way of knowing whether these delays are extraordinarily unlikely or whether they happen all the time," Bayh said. "Best I can tell here today, this is something you are prospectively concerned about."
Democrats also questioned giving the FBI authority to read the outside of a person's mail without a U.S. postal inspector's approval, as is the case now. Caproni said various postal inspectors apply different standards. "They are not a rubber stamp," she said.
"It is odd, to say the least, that the FBI is the agency that is charged with protecting the country from terrorist attacks and from spies, and yet our ability to use this very basic tool of a mail cover is charged to the discretion of another agency," Caproni added.
James X. Dempsey, executive director of the Center for Democracy and Technology, testified that he knows of no justification for the provision, and his civil-liberties advocacy group believes the problems between the FBI and the Postal Service could be handled without legislation.
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