Tailor the Patriot Act

Saturday, November 19, 2005

THE CONFERENCE report on the bill to reauthorize the USA Patriot Act has run into trouble -- and for good reason. A bipartisan group of senators and representatives is objecting that it does too little to build checks and balances into the powers the government received after the Sept. 11, 2001, attacks. On at least some points, the lawmakers are clearly correct and should be accommodated. Even at this late stage, the bill could stand significant


The current version is not all bad. On the plus side, conferees left out the bulk of the extraneous provisions that sullied the House version -- including some dreadful ones on the death penalty. They also batted back an effort to gut federal habeas corpus review of state convictions, though they included some troubling provisions on the subject. There are some good new reporting requirements, including requirements for the Justice Department's inspector general to audit the FBI's use of national security letters -- a kind of administrative subpoena used to gain certain business records. The conferees also rejected proposals for a far broader administrative subpoena power for the bureau. And their draft contains modest new limitations on the use of the original Patriot Act authorities.

The trouble is that these are too modest. The Senate version of the bill represented a unanimous bipartisan agreement to give the government the powers it needs while ensuring greater accountability in their use. The conference report backtracks from that accountability across a variety of areas. It allows for longer delays before certain secret search warrants need to be disclosed to their targets, for example, and it contains weaker controls concerning secret warrants for business records in national security cases. Most troubling, the conference report weakens the Senate's "sunset" rules under which a number of powers would have expired in four years without congressional reauthorization. The sunset provisions in the original Patriot Act gave Congress some leverage during the past few years to elicit information from the administration concerning the use of these broad intelligence powers. They need to remain strong.

The changes needed to this bill are not dramatic -- in large measure because the bill itself isn't as bad as its critics contend. But they are important. The Patriot Act powers are too extensive not to tailor carefully.

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