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Back to Archives | Back to January 2006 Contents 

Legislative Alert

Congress Passes Five-Week Extension of the Expiring Provisions of the Patriot Act

By Jennifer Boyter, IACP Legislative Analyst

n December 22, the last day of the first ses­sion of the 109th Congress, lawmakers ap­proved a five-week extension of the 16 expiring provisions of the Patriot Act. This action ended a weeklong showdown between the House and Senate that began when the Senate blocked leg­islation (H.R. 3199) to make permanent 14 of the 16 expiring provisions of the 2001 antiter­rorism law and extend the other two provisions for four years. The House, Senate Republican leaders, and President Bush all opposed a short-term extension, arguing that the Senate should instead pass the broad reauthorization of the legislation. However, with the provisions set to expire on December 31 and the impend­ing holidays, lawmakers were forced to settle on the extension.

The Senate had initially approved a six-month extension of the bill, only to have the House respond with a five-week extension. The Senate then agreed to the shorter extension. Congress now has until February 3 to reach agreement on several provisions.

The short-term extension came after it be­came clear that Senate Majority Leader Bill Frist (R-Tennessee) did not have the votes to break a bipartisan filibuster of the bill. Sixty votes were needed to override the filibuster led by Sen. Rus­sell Feingold (D-Wisconsin) and Sen. Larry Craig (R-Idaho) and end debate, which is known as "invoking cloture." Cloture would have brought the legislation to a final vote, al­lowing the Senate to renew it by a simple majori­ty. But the bill fell eight votes short, as four Re­publican Senators joined all but two Democrats to support the filibuster of the bill.

Opponents of the legislation argued that two of its provisions did not go far enough in protect­ing civil liberties, allowing the government too much latitude in conducting secret searches and in obtaining personal information, such as library and medical records and business transactions.

Unlike the Senate, the House easily approved the conference report on the legislation, which re­flects an agreement between the House and Sen­ate resolving the differences between the ver­sions passed by each chamber. The report makes permanent 14 of the 16 expiring provisions. These include provisions that allow law enforce­ment authorities to use wiretaps and other sur­veillance measures to investigate suspected acts of terrorism. It would also make permanent pro­visions that allow law enforcement and intelli­gence officers to share information in matters of national security; the extension of the time dura­tion of wiretaps and search warrants from 90 to 120 days; and provisions that make it easier for authorities to issue pen-register and trap-and-trace orders, which can be used to track tele­phone calls and Internet communications.

In an attempt to assuage the concerns of the bill's opponents, the members of the House-Sen-ate conference committee revised the conference report to place new safeguards and shorter expi­ration dates on the act's two most controversial provisions: authorization for roving wiretaps, which allow investigators to monitor multiple devices to keep a target from evading detection by switching phones or computers; and obtain­ing secret warrants for books, records, and other items from businesses, hospitals, and organiza­tions such as libraries.

Specifically, the bill sets a 2009 expiration date for these two controversial provisions, which matches the four-year sunset from the Senate version of the bill. It also includes new safeguards on their use. For example, it requires that the requests for roving wiretaps include de­scriptions of specific targets in both the applica­tion and the court order, if the target's identity is unknown. Such roving wiretaps would also re­quire facts showing that the target's actions might thwart surveillance efforts. The FBI would also have to notify the court of any new device being monitored within 10 days after be­ginning surveillance.

The second provision would allow federal law enforcement to seek a court order for "any tangible thing," such as business, library, or medical records, which are deemed related to a terrorism investigation. The House version had called for ten-year sunsets for these provisions, and the draft conference report that was initially circulated called for seven-year sunsets.

Under the bill, individuals who receive business records requests and national security letters, which are used to demand phone records and other business records without prior approval from a judge, would be allowed to contact an attorney and challenge the orders in court. In addition, the Justice Department in­spector general would perform audits of the use of national security letters and business records requests.

Despite forcing several changes to the initial draft of the conference report, including the shorter sunset periods, the six senators leading the opposition-Larry Craig (R-Idaho), John Sununu (R-New Hampshire), Lisa Murkowski (R-Alaska), Richard Durbin (D-Illinois), Russell Feingold (D-Wisconsin), and Ken Salazar (D-Colorado)-said that those efforts were not enough and that they wanted the final version to be much closer to the Senate version.

For example, they want the "relevancy stan­dard" for seizure of business records, including libraries and bookstores, to be the stricter Senate standard, so that law enforcement must tie busi­ness records requests and national security let­ters directly to a suspected terrorist. In addition, the opponents have called for tighter judicial re­view of national security letters, expressing con­cern that the current language would require courts to accept as conclusive the government's assertion that a gag order is necessary, unless the court determines the government is acting in bad faith.

In addition, they want a shorter delayed no­tification for searching a home through a sneak-and-peek search. The Senate bill requires author­ities to notify the target of a secret home search within seven days of the search. The conference report would make it 30 days.

The opponents of the bill have said they do not want the provisions to expire but want more time to amend the bill. With the House out until the end of January, and a Senate schedule that al­ready includes confirmation hearings for Supreme Court nominee Samuel Alito, it is doubtful that Congress can reach a final agree­ment in such a short time. ■



From The Police Chief, vol. 73, no. 1, January 2006. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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