By MARGARET TALEV
December 13, 2005
That could change this week, if the House and Senate give final approval to legislation extending key powers of the anti-terrorism USA Patriot Act set to expire at year's end.
Public librarians and free-speech activists, and to a lesser extent some business leaders, say the House-Senate compromise up for final consideration in both chambers beginning Wednesday still gives the government too much power to peek into people's lives. But if it prevails, the legislation will provide new requirements that the federal government begin regularly auditing and reporting to Congress on how and how often the Patriot Act is being used - a possible silver lining for critics.
"It's certainly possible if there were more public disclosure, there would be more public pressure" on the government not to abuse surveillance powers, said Lisa Graves, senior counsel for legislative strategy for the ACLU. At the same time, she said of mandated government reporting: "Oftentimes the information is late, or it's generalized in ways that make it hard to add up what's going on."
The prospects for passage of the legislation were uncertain in the Senate. With a filibuster threatened and lawmakers hoping to recess for the year by next week, at least two proposals were circulating to extend the current provisions into next year on an emergency basis.
The USA Patriot Act has given federal investigators broad powers to track terrorism over the past four years by searching individuals' health, tax, business or library records, telephone, Internet and e-mail communications, and private homes, with greater ease and secrecy than in the past and with little recourse.
"It has protected American liberty and saved American lives," President Bush said in a weekend radio address.
The Justice Department has released selective data in bits and pieces to lawmakers and publicly including during congressional testimony earlier this year.
But the Justice Department isn't required to - and doesn't - release the overall statistics on how many times the government has invoked those powers overall: Dozens? Tens of thousands? As a result, civil libertarians say there's no way to know how prevalent a practice the government has made of collecting previously private data about people with no connection to terrorists - other than having lived in a certain city, read a book or banked or bought goods from a business that also crossed the path of a target of an intelligence investigation.
The government also has kept secret its data on national security letters issued since passage of the Patriot Act. The FBI has for decades had the power to secretly review financial transactions, under national security letters, of suspected foreign agents. But, citing unnamed government sources, the Washington Post last month reported as much as a hundred-fold increase over traditional use of those letters in recent years, with the FBI issuing now more than 30,000 national security letters a year, many touching citizens with no apparent terrorism ties. The federal government objected to the report but did not counter that number.
That galvanized a cross-section of groups with concerns about the Patriot Act.
"People begin to scratch their heads and say, 'Gee, are there really 30,000 terrorism investigations going on in the United States?" said Bruce Josten of the U.S Chamber of Commerce, which supports the House-Senate compromise. Josten said he is hopeful the proposed reporting requirements "will evolve into additional hearings and information gathering related to these national security letters."
Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, told his colleagues in a letter distributed over the weekend that the audit and reporting requirements in the compromise legislation are among several "safeguards to prevent abuse." The compromise legislation also would require investigators to provide some statement of facts with terrorism-related search orders, and would give businesses, libraries and others from whom records are being sought the explicit right to consult attorneys and challenge the government's requests.
Controversial provisions would be extended for four years, instead of a decade as the White House sought. These include provisions covering roving wiretaps and certain records searches.
Congressional aides said Monday that the House should be able to pass the compromise legislation on Wednesday with a comfortable margin.
In the Senate, however, Sen. Russ Feingold, D-Wis., has threatened to mount a filibuster. If resistance appears serious enough, senators may instead vote to give an emergency extension to the Patriot Act in its current form and go back to negotiations next year - dropping the reporting requirements in the interim.
Several Senate Republicans have joined Democrats in calling for stronger limits on the government. Three - John Sununu of New Hampshire, Lisa Murkowski of Alaska and Larry Craig of Idaho - on Monday signed onto legislation with Sen. Patrick Leahy of Vermont, the Judiciary Committee's ranking Democrat, seeking to scrap the compromise, extend current Patriot Act provisions through March 31 and go back to negotiations early next year.
A Senate leadership aide speaking on condition of anonymity said Monday that Republicans are unlikely to agree to a three-month extension. If a vote this week on the compromise looks doomed, they might push for a one-year extension, the aide said, and return to talks after next November's elections.
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