The most significant news to emerge from Tuesday's Senate Judiciary Committee hearing on the USA Patriot Act was that Attorney General Alberto Gonzales is willing to negotiate with members of Congress on revising the law.
While Gonzales and FBI director Robert Mueller urged the committee to retain the 15 sections of the law that expire at the end of this year, the attorney general struck a more conciliatory tone than did former attorney general John Ashcroft in his confrontations with the committee.
Congress passed the Patriot Act in October 2001, in the wake of the al-Qaida terrorist attack on Sept. 11. The law broadened existing government powers to conduct electronic surveillance and to record suspects' e-mail traffic, not only in terrorist cases but in some criminal cases as well.
Democrats on the committee said they were encouraged that Gonzales indicated he’d be willing to negotiate with Congress on revising Section 215 of the law to allow individuals or firms that are served with secret warrants under of the law to challenge those warrants in court.
Section 215 of the law empowers a special court, under the 1978 Foreign Intelligence Surveillance Act, to issue secret orders requiring businesses or institutions to turn over records concerning terrorists or foreign agents.
Gonzales said he would work with Congress to revise the law to allow individuals and firms served with secret warrants under section 215 a greater opportunity in court than they now have to challenge the warrants.
Feingold sees hope
Sen. Russ Feingold, D–Wis., the only member of the Senate to vote against the law in 2001, said after leaving the hearing that “the attorney general has finally admitted that there are problems with the way the USA Patriot Act was written. In particular Section 215, which has to do with business records, including library records.”
"After saying there essentially should be no changes in the law, he has now proposed changes that move in the direction of the objections that I raised originally," Feingold said. "I’m hoping that this is the beginning of the recognition that this law was hastily drafted, that we have an opportunity to fix it and we can put aside the absurd claims that there is nothing wrong with the bill.”
He added, “There’s no proposal with strong support in the Congress to simply repeal any provisions, we just need to fix them.”
Although every member of the Senate except Feingold voted for the Patriot Act in 2001, some members now have a case of buyer’s remorse.
The law was passed “at a moment when our nation was gripped by high emotion and fear,” said Sen. Dick Durbin, D-Ill., as he opened his questioning. “History tells us that we don’t do our best work under those circumstances.”
Durbin asked Gonzales about a hypothetical case that might arise under Section 215. What if, Durbin asked, the FBI gets a tip that the wife of a suspected terrorist living in the United States had gone to a clinic to get an abortion?
FBI agents “would set out through Section 215 to search the records of a hospital or clinic for all the women who had received an abortion, whether or not they might have been associated with any terrorist activities,” Durbin said.
Without commenting on Durbin’s hypothetical situation, Gonzales said Section 215 “is certainly applied as narrowly as we can.”
Concern about library, medical records
Committee Chairman Sen. Arlen Specter, R-Pa., noted that since the enactment of the Patriot Act in October 2001, the Bush administration has not used Section 215 to get any library or medical records.
Probing Gonzales for a possible willingness to compromise, Specter asked, “Would you see any problem with specifically excluding from reauthorization of the Patriot Act authority to obtain library or medical records?”
The attorney general replied that the Justice Department “has no interest in rummaging through the library records or the medical records of Americans.”
“Does that mean you’re ready to exclude them?” from a revised Patriot Act, Specter asked.
No, Gonzales said, explaining, “We do have an interest, however, in records that may help us capture terrorists. And there may be occasions where having the tools under 215 to access this kind of information may be very helpful to the department in dealing with the terrorist threat.”
He offered an analogy: The Justice Department not using Section 215 so far to get library or medical records is like a policeman on the beat who carries a gun in 15 years of service but has never yet used it.
“It should not be held against us that we’ve exercised, in my judgment, restraint,” he told Specter.
“I don’t think your analogy is apt,” replied the chairman.
Mueller seeks new subpoenas
Despite the misgivings of some senators about the government’s powers under the Patriot Act, Mueller told the committee he saw a need for Congress to go further.
He asked the committee to give the FBI in terrorism cases what it already has in Medicare fraud and child pornography cases: the power to use an administrative subpoena to quickly get documents needed in an investigation, without going before a judge to get a court order.
Mueller said the FBI often gets information from the CIA and other sources on terrorist threats. “We need to immediately find out whether that information is accurate or inaccurate. We need basic records from third parties,” such as hotel records. Usually hotels voluntarily turn such records over to the FBI, but Mueller said administrative subpoenas would be useful.
The person served with such a subpoena could challenge it in court and seek to have it quashed.
Gonzales and Mueller got support from one committee Democrat, Sen. Dianne Feinstein of California, who said, “I have no reported abuses” of the law, adding that her office had looked into thousands of alleged abuses.
Much of the parrying between the Democratic senators and the two witnesses came over the use of Section 213 of the law, which permits judges to delay notifying a person whose property has been searched by federal agents when a delay in notification is necessary to prevent destruction of evidence, intimidation of witnesses or escape of suspects.
The Justice Department said it has asked for 155 such warrants since 2001.
Under questioning by Feinstein, Gonzales reminded her that Section 213 “was not limited only to terrorism cases. The fact that the authority was used in connection with other kinds of cases doesn’t mean that we have violated the law; quite the contrary … we exercised the authority that was granted by this Congress.”
Questions on torture
The senior Democrat on the committee, Sen. Patrick Leahy, D-Vt., spent much of his questioning asking Gonzales about the issue of torture and whether the United States ought to send suspects to countries where the regime has tortured in the past.
Why should the Bush administration believe foreign governments who assure it that they won’t torture suspects the United States turns over to those governments? “That’s a difficult question that requires a case-by-case analysis,” Gonzales said warily. “We have an obligation not to render people to other countries when we believe it is more likely than not that they will be tortured.”
Later in the morning, Leahy posed the hypothetical: Would the United States have turned suspects over to Saddam Hussein’s government if he’d promised the U.S. government he would not torture them? Gonzales said the Bush administration seeks “very specific assurances” prohibiting torture before turning over any terrorist suspect to a foreign government.
Shortly after the hearing, a bipartisan group of senators, including Durbin, introduced a bill they call the SAFE Act, which would curtail parts of the Patriot Act, including the expiring Section 215 and the delayed notification search provision.