Jennifer Boyter, IACP Legislative Analyst
n April 5, Attorney General Alberto Gonzales and FBI Director Robert Mueller testified before the Senate Judiciary Committee and urged Congress to make provisions of the Patriot Act permanent.
This was the first of what will be many hearings this year on the Patriot Act, since several sections of the sweeping antiterrorism bill passed in the aftermath of the September 11 attacks will expire at the end of 2005 unless lawmakers act to renew them.
The expiring provisions include one that lowered the legal threshold for law enforcement to seek search warrants under the Foreign Intelligence Surveillance Act (FISA). Another controversial provision that is set to expire is the so-called business records provision that allows the FBI to demand, subject to a judge’s permission, “any tangible thing,” such as books, records, or other documents, related to an authorized investigation of terrorism.
Also expiring is a provision passed as part of the 2004 intelligence reform bill that allows the administration to seek FISA warrants to target so-called lone wolf terrorists who may not be connected to a specific country.
Nevertheless, critics of the Patriot Act argue that the entire law should be reviewed, along with other aspects of the administration’s legal tactics in the war against terrorism. One nonexpiring provision that has been criticized by many lawmakers allows police to conduct searches and seize evidence without first notifying the subjects of the investigations. Language nullifying this provision was passed by the House in 2003 but did not become law.
The IACP strongly supports the Patriot Act, which enhanced the government’s surveillance and prosecutorial powers against suspected terrorists, their associates, and those who fund them. In a letter to the chairmen of the House and Senate Judiciary committees, President Joseph Estey reaffirmed the organization’s support for the law.
Estey wrote, “The IACP believes that this legislation significantly enhanced the ability of law enforcement agencies to investigate, apprehend, and convict terrorists operating in the United States, and failure to reauthorize the provisions of the act would considerably reduce the abilities of our nation’s law enforcement agencies.”
Gonzales and Mueller made similar arguments in their testimony before the committee, arguing that the antiterrorism efforts of the nation’s state and federal law enforcement would be severely hindered if the provisions were not renewed.
Gonzales told the committee that “terrorist groups still pose a grave threat to the security of the American people, and now is not the time to relinquish some of the most effective tools in this fight.”
In addition to asking Congress to reauthorize the expiring sections, Mueller also called for administrative subpoena power in terrorism cases. That authority, which the FBI currently has for drug trafficking and health care fraud investigations, would allow them to demand documents and other materials in terrorism investigations without a judge’s permission.
It is unclear whether Congress will let any of the provisions lapse. It is possible that the expiring provisions could be extended temporarily. But it is likely that lawmakers will try to rewrite some of the law’s more controversial provisions.
Senator Arlen Specter (R-Pennsylvania), chairman of the Judiciary Committee, has said that the legal standard for some searches should be raised. He also plans to seek more reports from the Justice Department on how it is using the law enforcement powers provided for under the Patriot Act.
During the hearing, Specter asked several tough questions, signaling that he may be planning changes to the law that the administration would oppose. For example, he asked Gonzales if it would be a major burden if Congress changed the business records provision to require law enforcement to show probable cause that the target of an investigation was involved in international terrorism. Gonzales told Specter that such a change would make it unusable.
Similarly, House Judiciary Committee Chairman James Sensenbrenner (R-Wisconsin) has been skeptical of the administration’s desire for added law enforcement powers.
In addition, Senators Larry Craig (R-Idaho) and Richard Durbin (D-Illinois) have introduced a bill (S. 737) that would limit the use of roving wiretaps and delayed notification warrants. It would require notice of such delayed notification warrants within seven days of the search but allow judges to temporarily delay the notice.
The bill would also amend the business records provision to require law enforcement to show that the records sought pertained to a specific person suspected of terrorist ties. And it would allow recipients of such orders to challenge the order itself and the gag provision that prohibits recipients from telling anyone else about the order. The bill, known as the Security and Freedom Ensured (Safe) Act, has drawn support from both conservative and liberal groups.
In addition, Senator Charles Schumer (D-New York) said at the hearing that he planned to introduce an amendment to the Patriot Act that would bar anyone on a federal terrorism watch list from buying a gun. The proposal comes weeks after a Congressional report found that dozens of terror suspects were allowed to buy guns last year because being on a watch list does not, on its own, prevent such a purchase.