Too much prying power
A Times EditorialThe House passed the conference report on the Patriot Act's reauthorization this week, but the Senate should demand more changes.
Published December 16, 2005
On the plus side, some of the USA Patriot Act's most controversial provisions would again sunset after four years, and the effort by some lawmakers to give the FBI even greater surveillance powers without judicial oversight failed.
On the minus side - a much larger side - the conference report on the Patriot Act's reauthorization does little to fix the serious civil liberties deficiencies of the original legislation. Whatever additional safeguards have been included to protect American freedoms are more for show than for imposing true limits on the FBI's intrusive powers. The new provisions include gaping loopholes that make them essentially worthless.
While the House passed the conference report this week, the Senate still has an opportunity to do the right thing and reject it. A growing bipartisan group of senators, including Sen. Russ Feingold, D-Wis., who was the only senator to vote against the original Patriot Act, and Sen. Larry Craig, R-Idaho, are courageously standing against the momentum. Three Republicans and three Democrats signed a statement saying they are "gravely disappointed" with the conference report, and Feingold is threatening a filibuster if changes are not made. Now more than two dozen senators have joined Feingold's side, and they should hold their ground and demand changes.
The most serious flaw in the conference report is that it continues to subject Americans' personal records to FBI fishing expeditions. The government is not required to demonstrate that the records it is seeking are connected to a suspected spy or terrorist. All the government has to claim to confiscate databases of library, medical and other types of personal records is that they are relevant to a terrorism investigation. The conferees added a requirement that the secret intelligence court which reviews these warrant requests would have to find that there are "reasonable grounds" to support the government's assertions, but it would be no harder to gain access to huge swaths of records on people who are not suspected of terrorism.
The FBI reportedly is making extensive use of an administrative subpoena known as a "national security letter" in which transactional records, including bank records, can be obtained without court review or approval. As many as 30,000 national security letters are being issued every year, an astounding increase from pre-2001 levels. While the conferees provided a right to challenge national security letters in court, they didn't tighten the standards for the issuance of the letters or require the government to purge information about innocent people.
Sixteen provisions of the original Patriot Act included an automatic sunset. The law was passed only 45 days after the 9/11 attacks, when emotions were high and it was easy to sign away civil liberties in exchange for the promise of safety. Law enforcement was granted sweeping new powers, and now it is obvious some of these powers have been abused. Congress had the opportunity to fix the flaws, but the conferees produced a bill that is little better than the original one. The Senate should stand firm and reject it.