By Carrie Johnson and Ellen Nakashima
Washington Post Staff Writers
Wednesday, September 16, 2009; A03
The Obama administration has for the first time set out its views on the controversial USA Patriot Act, telling lawmakers this week that legal approval of government surveillance methods scheduled to expire in December should be renewed, but leaving room to tweak the law to protect Americans' privacy.
In a letter from Justice Department officials to key members of the Senate Judiciary Committee, the administration recommended that Congress move swiftly with legislation that would protect the government's ability to collect a variety of business and credit card records and to monitor terrorism suspects with roving wiretaps.
But Assistant Attorney General Ronald Weich also told Democrats that the administration is "willing to consider" additional privacy safeguards advocated by lawmakers, so long as the provisions do not "undermine the effectiveness of these important authorities."
The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.
Obama's approach to electronic surveillance has been closely watched since he shifted positions during the presidential campaign last year, casting a vote to update the Foreign Intelligence Surveillance Act over the objections of liberals in his party. That law granted telecommunication companies immunity from lawsuits by Americans who argued that their privacy had been violated in an electronic data collection program.
Wiretapping and surveillance grew highly politicized during the Bush years after the New York Times disclosed a secret electronic monitoring program that had swept up sensitive information for years without court approval.
The Justice Department inspector general issued blistering audits in 2007 and 2008, finding, for instance, that FBI agents had used demands for information known as national security letters in many cases where they were not authorized and had employed other tools called exigent letters to quickly obtain data without proper follow-up.
Chairmen of the House and Senate Judiciary Committees scheduled hearings on the reauthorization of the expiring provisions in the Patriot Act for next week. And Sens. Russell Feingold (D-Wis.) and Richard J. Durbin (D-Ill.), who raised strong objections to the problems in the previous administration, said Tuesday that they will introduce a bill that would enhance privacy safeguards.
"We must take this opportunity to get it right, once and for all," they said in a joint statement.
Several civil liberties groups are exhorting Congress to use the expiration to begin debate on an array of domestic surveillance issues. One priority is national security letters, which require disclosure of sensitive information by banks, credit card companies, and telephone and Internet service providers. No judge signs off on these, and recipients are usually barred from talking about the letters.
Durbin and Feingold want to tighten standards for obtaining national security letters so that the government must show some "nexus to terrorism," according to a Senate Democratic aide, heightening the current standard of showing "relevance" to a counterterrorism investigation. The senators also want a judge be able to review the appropriateness of the gag order on the letters' recipients. Such provisions were contained in bipartisan legislation introduced previously by Feingold and Durbin and supported by then-Sen. Barack Obama.
Their new bill, expected to be out this week, will also seek to repeal the legal immunity granted to telecommunications companies included in last year's domestic surveillance legislation. The bill would also ensure that new powers granted under last year's law would not be used as a pretext to target the communications of Americans in the United States without a warrant, another Senate Democratic aide said.
The letters "are really the most glaring problem" under the Patriot Act, said Sharon Bradford Franklin, senior counsel at the Constitution Project, a bipartisan advocacy group. Michelle Richardson, legislative counsel at the American Civil Liberties Union, said it was "refreshing" to see the administration's willingness to work with Congress. "The question is, what will the final bill look like?"
The ACLU is also urging a tightening of last year's FISA Amendments Act to ensure that the government is collecting the e-mails and phone calls only of suspected terrorists. It also wants revisions of guidelines that empower FBI agents to use intrusive techniques to gather intelligence within the United States without any evidence that a target has ties to a terrorist organization.