Patriot Act cosmetics

A Times Editorial
Published March 10, 2006

Despite all the fuss, delays and last minute negotiating, the compromise bill to reauthorize the USA Patriot Act easily won congressional approval this week even though it suffers from virtually all the same defects of the original legislation. The changes are essentially cosmetic and will do little to protect civil liberties.

The revised version, which President Bush signed into law Thursday, does little or nothing to limit FBI fishing expeditions. It does not require the government to make a connection between a suspected terrorist or terror group and the records it is seeking. Nor does it rein in the use of national security letters. That leaves the FBI free to demand huge databases of private and confidential information if the records are "relevant to" a terrorism investigation - an incredibly vague standard.

One part of the Patriot Act, Section 215, gives the FBI the ability to obtain records by going before the Foreign Intelligence Surveillance Court for a warrant. But another provision broadens the FBI's power to issue national security letters - administrative subpoenas that are created internally without any court oversight. They are used to eavesdrop and obtain a vast array of personal records. Since 9/11, as many as 30,000 have been issued annually, a hundred-fold increase from prior years. Almost as concerning as this unaccountable power to gather private records is that the Justice Department is not destroying the material collected on innocent Americans after the investigation is over.

The revised version of the bill includes a small concession: Anyone who receives a national security letter may consult with an attorney without having to disclose their counsel's name to the government. It allows the recipient of a FISA court order or a national security letter to challenge the gag order they are put under, although all the government has to do is certify that the gag order is needed for national security and the challenge is nullified. And it exempts libraries from receiving national security letters unless the library offers certain electronic communications services.

These tweaks don't go to the heart of the matter, which is the need to place appropriate restraints on government snooping. Congress missed an opportunity to strike a better balance between security and civil liberties.