Patriot High-Wire Act

Tuesday, October 13, 2009

THE PATRIOT ACT was rushed through Congress weeks after the 2001 terrorist strikes to give law enforcement new tools to prevent another attack. Lawmakers reassessed the law about five years later, reworking some provisions to better protect civil liberties.

The Senate Judiciary Committee is leading another round of review and focusing on three provisions that are set to expire at the end of the year. The panel was right to vote to keep the provisions in place, with a few tweaks. The full Senate should endorse the thrust of this effort.

The committee's final product, shepherded by chairman Patrick J. Leahy (D-Vt.) and passed with bipartisan support, renews measures involving so-called lone-wolf suspects, roving wiretaps and obtaining business records. The lone-wolf provision allows law enforcement agents to seek court approval to surveil a non-U.S. citizen who is believed to be involved in terrorism but who may not yet have been tagged as a member of a particular foreign group. A roving wiretap allows the government to keep tabs on a suspected foreign agent even when that agent repeatedly switches cellphone numbers or communication devices; before this provision was enacted, law enforcement officers were forced to go back for court approval every time a suspect changed his means of communications. The business records provision permits the government to obtain a court order to seize "any tangible item" deemed relevant to a national security investigation; the new bill includes a provision to better safeguard the privacy of library records.

Senators spent much time and energy debating national security letters, powerful investigative tools that are most often issued to Internet service providers, credit rating agencies, financial institutions and telecommunications companies. NSLs, issued without a court order, require these businesses to turn over client information such as telephone records and e-mail logs; NSLs may not be used to obtain the content of these communications. The Senate panel was right not to limit the FBI's flexibility in using the tool, while calling for greater oversight to ensure that it is being used properly. The panel was also justified in giving NSL recipients a better shot at challenging the gag orders that routinely accompany national security letters.

Some civil liberties groups and Democratic lawmakers are distraught at the exclusion of what they see as necessary protections. Republicans and some on the right argue that changes made to protect against government excesses went too far. In fact, the Judiciary Committee struck a reasonable balance.

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