The USA Patriot Act was a mixed bag when it was passed two years ago in the aftermath of the 9/11 attacks. There were necessary elements, such as some of the provisions authored by U.S. Sen. Bob Graham allowing for greater cooperation in antiterrorism investigations among the nation's intelligence agencies. But along with pluses came a number of encroachments on civil liberties that were not needed to ensure national security.
In an effort worthy of widespread support, a bipartisan coalition of lawmakers is now pushing to roll back some of the Patriot Act's worst excesses. The Safety and Freedom Ensured (SAFE) Act, introduced by Sen. Larry Craig, a Republican from Idaho, and Sen. Richard Durbin, a Democrat from Illinois, is supported by advocacy groups as disparate as the American Civil Liberties Union and the American Conservative Union.
The bill would address the Patriot Act's most controversial provision - the FBI's access to records. Currently, the FBI may seize any records, be they from a library, a bank, a medical practice or an educational institution, by going before the secret Foreign Intelligence Surveillance Court and claiming the records are "sought for" a terrorism or counterintelligence investigation. The SAFE Act would return the law to pre-Patriot Act standards, where the FBI would have to link the records sought to a specific suspect. The change would prevent the agency from engaging in a fishing expedition, seizing whole databases of personal records without cause.
Under the Patriot Act's "sneak and peek" provisions, the FBI may search a home or business without notifying the target, similar to the notorious "black bag jobs" that occurred in J. Edgar Hoover's Justice Department. Under the SAFE Act, the FBI would be required to provide notification unless a life is at stake, or there is a flight risk or likelihood that evidence will be destroyed.
The bill would also narrow the use of roving wiretaps. Currently, under a single warrant, the FBI may wiretap conversations on any phone a suspect might use. Under the SAFE Act, the suspect would have to be present for the surveillance to proceed.
In the meantime, as the SAFE Act waits for action, it appears Congress is on the verge of giving the FBI even broader access to private records. Currently, in a narrow category of cases, the FBI may use administrative subpoenas known as national security letters to obtain records without a judge's approval. These judge-less subpoenas may be used to gain banking and credit union records and a couple of other types. But a little noticed provision of the intelligence community's authorization bill would markedly expand this authority, applying it to any business engaging in significant cash transactions such as car dealers, casinos, post offices and jewelers. The FBI would be able to get what it wants under its own signature.
The bill will soon come before the House-Senate conference committee,where lies the only hope of deleting the rash new FBI power. A responsible Congress would not go along.
