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Civil liberties at risk

Republican leaders want to expand an already controversial provision of the Patriot Act that is set to expire at the end of this year.

A Times Editorial
Published May 23, 2005

The right to be free from unreasonable searches is at risk of becoming a relic of a more enlightened time in American history. With 16 provisions of the USA Patriot Act set to sunset at the end of the year, the Bush administration and Senate Republican leaders are pushing to renew the act and essentially expand one of its most controversial surveillance provisions. Their proposal would give the FBI the power to demand business and other personal records related to a terrorist investigation without first obtaining judicial approval.

There already are civil liberties concerns over the lax standards for records access contained in Section 215 of the Patriot Act - one of the provisions set to expire. The section directs a judge in a secret court to allow the government to obtain any record it wishes if the investigation is related to national security. Prior to the Patriot Act's passage, the FBI had to first demonstrate that the records sought pertained to an "agent of a foreign power."

Getting rid of this individualized suspicion requirement enabled the FBI to gain access to huge databases that include personal information on law-abiding Americans, with only the barest of judicial oversight. But even this perfunctory level of judicial review is apparently too much scrutiny. The Bush administration and Republican leaders on the Senate Select Committee on Intelligence now want to allow the FBI to obtain these sorts of records with an administrative subpoena, which can be issued internally without a request to a judge. Supporters note the FBI already has the authority to issue administrative subpoenas in cases involving health care fraud, drug trafficking and other categories of crime.

But antiterrorism investigations are different from other types of criminal inquiries. Experience shows there is a far greater danger that suspicion will be based on a person's ethnicity, religious affiliation or membership in a group that is critical of the government.

As Congress debates the merits of various parts of the Patriot Act, it should consider restoring some reasonable checks on law enforcement. The FBI may not want to be answerable to a judge when it seeks to peer into our private lives, but the protection of our liberty demands it.

[Last modified May 23, 2005, 01:23:18]

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