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Attorney General Alberto Gonzales will urge Congress this week to extend expiring provisions of the Patriot Act
By Tom Curry National affairs writer
updated 4/5/2005 7:00:33 AM ET 2005-04-05T11:00:33

Is the USA Patriot Act helping defeat terrorists?

Attorney General Alberto Gonzales and FBI director Robert Mueller will supply answers to that question this week as they testify before the Senate and House Judiciary Committees.

Key parts of the Patriot Act expire at the end of this year and Congress must decide whether to extend them, as well as whether to alter other parts of the statute.

Senate Judiciary Committee chairman Arlen Specter wants the Patriot Act legislation passed by late summer. A left-right coalition, including the American Civil Liberties Union (ACLU) and Republican strategist Grover Norquist, is urging Congress to scale back the law.

The lightning rods for criticism include:

  • Section 213, which permits judges to delay notifying a person whose home or property has been searched by federal agents, when delayed notification is necessary to prevent destruction of evidence, intimidation of witnesses, or escape of suspects.
  • Section 215, which empowers a special court, under the 1978 Foreign Intelligence Surveillance Act (FISA), to issue secret orders requiring businesses or institutions to turn over records concerning terrorists or foreign agents.
  • Section 218, which expands the number of cases in which intelligence data can be given to prosecutors investigating foreign intelligence activities.
  • Section 505, which expanded FBI agents’ powers to seize certain records using a “national security letter,” a kind of subpoena, without getting permission from a judge.
  • Section 802, which defines domestic terrorism.

Sections 215 and 218 expire at the end of this year; the others listed above do not.

A chance to offer proof
In a political environment long on hyperbole and short on empirical evidence, this week’s hearings will be a chance for proponents of the Patriot Act to offer proof that it works and for the law’s opponents to offer specific instances of it being used to violate constitutional rights.

The hearings will be an opportunity for Gonzales "to put some color, some interesting stories, to the statistics," said Viet Dinh, who served as assistant attorney general in the Bush administration until last summer and had a central role in writing the Patriot Act.

Dinh mentioned, as an example, the use of Patriot Act provisions last December to apprehend a suspect in the slaying of a Missouri woman, Bobbie Jo Stinnett, who was eight months pregnant. The assailant cut the baby from Stinnett's womb.

Dinh's example underscores a key point: the Patriot Act includes surveillance provisions that can be used in criminal cases, as well as in terrorism investigations.

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And that is one of the concern of the law's critics: Jeanne Herrick-Stare, a lobbyist for the Friends Committee on National Legislation, said one question that the hearings should raise is, “Was the Patriot Act intended to deter ‘terrorism’?  If so, the hearings must make sure we’re all on the same page by establishing a working definition for that slippery term in the context of the Patriot Act. Or was the Act intended to give law enforcement more tools to use in criminal law matters? Or both? What have been the unintended consequences?”

Defending the delayed-notice warrants in section 213, the Justice Department has pointed to several prosecutions, one of which, United States v. Odeh in 2003, involving an alleged plot to ship components for unmanned aerial vehicles to Pakistan.

But a critic of the Patriot Act, Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice said, “It will be difficult for members of Congress to assess the Patriot Act because many of the most controversial provisions are shrouded in secrecy. Many of the people who are directly impacted by Patriot Act subpoenas cannot come forward to tell us what is happening. The Patriot Act criminalizes such speech. One federal court has declared such ‘gag’ type provisions to be a violation of the First Amendment, but the matter is still in litigation.”

The ruling to which Lynch referred came last October in a case involving an Internet access provider  — its identity kept secret under the terms of the 1986 law — which received a national security letter directing it to provide certain records to the FBI that were needed in a counter-terrorism investigation.

Violating the Fourth Amendment?
Federal district Judge Victor Marrero took on the issue of national security letters. He found that a provision in the 1986 Electronic Communications Privacy Act, later amended by the Patriot Act, violated the Fourth Amendment’s limit on “unreasonable searches and seizures.”

The 1986 law’s non-disclosure requirement also violated the First Amendment, Marrero said. The Justice Department has appealed Marrero’s ruling.

Laura Murphy, the director of the ACLU’s Washington Legislative Office, said, “The ACLU is not opposed to the entire Patriot Act.” But her organization wants some provisions scrapped or narrowed.

For example, the definition of a domestic terrorist organization in section 802, Murphy contends, is so broad that the government could apply it to an anti-abortion group that blocked a street during a protest.

“Are these (protestors) the same kind of people who are going to kill 3,000 people with airplanes?” she asked.

Section 802’s definition of a domestic terrorist organization requires that the group must have engaged in conduct that violates federal or state law and that endangers life.

Concern on warrant requirement
“Section 218 needs to be tightened,” Murphy said. “It makes it much easier to have these foreign intelligence searches used for criminal investigations and gives prosecutors a way to get around a warrant requirement. It’s just too easy to do it under section 218.”

Sen. Patrick Leahy, D- Vermont explained in October of 2001 during the Senate debate over the Patriot Act why section 218 was needed.

It is designed, Leahy said, to “break down traditional barriers between law enforcement and foreign intelligence. This is not done just to combat international terrorism, but for any criminal investigation that overlaps a broad definition of ‘foreign intelligence.’”

But even as he prepared to vote for the Patriot Act, Leahy called section 218 “very problematic” because it would “make it easier for the FBI to use a FISA wiretap to obtain information where the Government’s most important motivation for the wiretap is for use in a criminal prosecution.”

This week’s hearings will offer one important lesson: assessing the Patriot Act will require a closer look at its predecessors: FISA from 1978 and the Electronic Communications Privacy Act of 1986.

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